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Need For Criminalization Of Rape Under Confinement Of Marriage: A Critical Analysis

This Research paper mainly revolves around the topic "Need for Criminalization of Rape Under Confinement of Marriage: A Critical Analysis."

Marital rape occurs when a husband and wife engage in sexual activity without the wife's consent. Cohabitation against the wife's will is a serious crime that cannot be excused

simply because the husband was raised in a society that believes the husband has the right to cohabit anywhere and whenever he wants. When a husband is unconcerned about his wife's personal space and disregards her 'NO,' he is infringing on her fundamental right to

privacy. Finally, when marital rape is not considered a sort of rape, the 'right to equality' is violated. This problem has reached a tipping point in India, and it should now be considered a crime punishable by severe penalties. As a result, criminalizing marital rape in India is critical. This paper attempts to highlight the issue of rape in the secrecy of

marriage and why marital rape must be criminalized by criminal justice system. This paper also tries to shed light on the legislative development under rape law since 18th century, present legal position of the same and how marital rape violates article 14, (Right to equality) and article 21 (Right to Privacy) of Indian constitution. This paper also includes case law for a better understanding of the subject, as well as some suggestions for improving the situation.

Acc. to UN Women, a global org. that promotes women's legal rights, every third woman has been the victim of sexual or physical abuse perpetrated by a close companion, a non-partner, or both. Acc. to the report, one out of every seven women experienced physical or sexual violence from a partner or husband in 2018.1 Because marital rape is not a crime in India, we lack particular data on the subject. Marital rape is classified as domestic violence in Indian law.

Exception 2 to Sec 375 of IPC allows for the non-criminalization of marital rape in India. The UN Committee on CEDAW, however, recommended that the Indian govt. should ban marital rape in 2013. The same was proposed by the JS Verma committee, which was formed in the aftermath of widespread demonstrations over the December 16, 2012 gang rape case. Women will be safer from abusive spouses, will be able to get the support they need to recover from marital rape, and will be able to protect themselves from domestic violence and sexual assault if this law is repealed.

Research Hypothesis
"Exception clause 2 of section 375 of Indian Penal Code 1860 violates the Art. 14 and Art.21 of Indian Constitution"

Research Methodology
The paper follows doctrinal research, which is theoretical in character and entails a detailed analysis of legal principles as well as an assessment of legal theory and how it is created and applied. Interpretation of case law, legislation, and other legal docs is the focus of this methodology.

Harvard Bluebook - 20th Edition

Rape under Confinement of Marriage - Marital Rape
The term "marital rape" refers to a sexual act perpetrated by the husband without the wife's consent. To demonstrate their authority and strength, some husbands sexually exploit their wives. This coercive act infringes on women's FRs in our country.

Rape is defined as a crime under Sec 375 of the IPC. Whereas, exception under section 375(2) of the IPC, 1860, sexual intercourse between a man and his own wife is not considered rape if the wife is not under the age of 15.

If more than one year has passed since the commission of the offence, sec 198 (6) of the CrPC 1973 states that no offence under sec 376 of the IPC,1860 should be prosecuted if the offence consists of sexual intercourse by a man with his own wife, the wife being under the age of 15. These Sections normalize the allegedly 'abnormal' culture of marital rape.

Independent Thought v/s Union of India (2017)
The SC raised the age limit from 15 to 18 years in this case. This provision assures that a husband who has sexual intercourse with his wife who is beyond the age of 18 without her consent will not suffer rape charges. Husbands have been exempted from prosecution for raping their wives because of this exception.

Legal Development of Rape Law from 18TH Century
Rape law remained unchanged for 30 years after the IPC 1860 was enacted.

Queen Empress v. Haree Mohan Mythee
This was the most noteworthy incident. This case recounts the tragic story of Phulmonee Dassee, who died at the age of 11 years and 3 months as a result of her husband's rape. Phulmonee died of haemorrhage caused by a burst vaginal wall, according to medical data.

Sir Andrew Scoble proposed the Bill in 1891, which eventually became the Indian Criminal Law (Amendment) Act of 1891. In both marital and extramarital rapes, this measure increased the age of consent to 12 years. The Act's goal was humanitarian, with the goal of "protecting female minors from immature prostitution and pre-mature cohabitation." Rai Bahadur Bakshi Sohan Lal, MLA, introduced a Bill in the Assembly in 1922 to modify sec 375 of the IPC, 1860 to raise the age of consent in both marital and extramarital incidents.

Hari Singh Gaur presented a Bill in 1927 to raise the age of consent in marital and extramarital individuals to 14 and 16 years, respectively. It was followed by the formation of the Age of Consent Committee, which examined the current situation and proposed a few modifications.

Due to the nature of the offence, particularly in the case of marriage, the committee concluded that the amended statute was useless. The awakened sectors of society believed that forbidding the marriage of a girl under the age of a certain age would be a better solution than raising the age of consent for sexual intercourse. Sections 375 and 376 of the IPC should be limited to rape committed outside of a marital relationship. The Committee also proposed a max penalty of 10 years in jail and a fine if the wife was under the age of 12 years, and a max penalty of one year in prison and a fine if the wife was between the ages of 12 and 15.

Current Legal Status
The exemption to section 375 of the IPC states that sexual intercourse by the husband is not rape when the woman is married and not less than 15 years old. This sec was revoked in 2013, but the concept of marital rape was not acknowledged. Acc to the Justice Verma Committee Report, the IPC's marital rape exemption should be repealed.10

As a result, no attempt has been made under Indian law to provide even a pretense of protection to a married woman's right to physically or sexual autonomy. Writ petition contesting the legality of exception 2 of sec 375 of the IPC 1860 are currently flooding the Hon'ble SC and different HCs.

Anuja Kapur v. Union of India (2019)
The petitioner filed a PIL before the Delhi HC to establish necessary guidelines, appropriate laws, or byelaws relating to marital rape as a reason for divorce, and to determine the appropriate punishment/penalties for violations of the above set standards and laws.

The Hon'ble HC of Delhi ruled that it is the legislature's responsibility, not the court's, to develop guidelines, relevant statutes, and bye-laws relating to marital rape. The interpretation of the law is more imp to the court than the writing of laws. We should not provide anyone any instructions on how to design laws or bylaws, or how to determine the proper penalties.

The RTI Foundation filed the PIL in 2015, and other individuals and institutions have also petitioned the HC of Delhi to overturn the exemption under sections 375 and 376B of the IPC, claiming that it excludes marital rape as a criminal offence.

Marital Rape and Indian Constitution
After entering into marital relationships, a wife is presumed to give her husband eternal agreement to have sex with her. While practically every country in the world recognizes unwanted sexual contact between a husband and a wife as a crime, India is one of the 36 countries that has yet to prosecute marital rape.

Violation of Article 14 of Indian Constitution
"The State shall not deny to any person equality before the law or equal protection of the laws within the territory of India," says Art 14 of the Indian Const. Despite the fact that the Indian Const promises equality to all, Indian criminal law discriminates against women who have been raped by their husbands.

A married woman was not regarded an independent legal entity when the IPC was established in the 1860s. Rather, she was thought to be her husband's chattel. As a result, she lacked many of the rights that come with being an independent legal body, such as the ability to bring a complaint against another under her own name. However, times have changed. Husbands and wives now have separate legal identities under Indian law.

Exception clause 2 of sec 375 of the IPC violates Art 14's right to equality by discriminating against married women by denying them equal protection against rape and sexual harassment. The Exception divides women into two groups based on their marital status and protects males who harm their spouses.

Budhan V. State of Bihar (1955)
In this case, the SC decided that any categorization made under Art 14 of the Indian Const. must pass a reasonableness test. However, Exception 2 contradicts the objective of Sec 375, which is to protect women and punish those who commit rape. Exempting husbands from punishment goes completely against that goal. Rape has the same effects whether a woman is married or single.

Violation of Article 21 of Indian Constitution
Art 21 of the Indian Const. is also violated by Exception clause 2 of Sec 375 of the IPC. "No person should be deprived his life or personal liberty except in accordance with the method established by law," says Art 21. In several decisions, the SC has interpreted this phrase to go beyond the simply literal protection of life and liberty. Instead, it has held that Art 21 guarantees the rights to health, privacy, dignity, safe living conditions, and a healthy environment, among other things. In recent years, courts have come to recognize that these broader rights to life and personal liberty include a right to abstain from sexual intercourse and to be free of unwanted sexual behavior.

The State of Karnataka V. Krishnappa (2000)
The SC ruled that sexual violence is an unlawful invasion of a woman's right to privacy and sanctity, in addition to being a demeaning act. Non-consensual sexual intercourse is considered physical and sexual violence in the same ruling.

Justice K.S. Puttuswamy (Retd.) V. Union of India (2017)
The SC recognized the right to privacy as a FR of all citizens, holding that it includes decisional privacy embodied by the ability to make intimate decisions principally involving one's sexual or procreative nature and decisions regarding intimate interactions.

The right to abstain from sexual activity for all women, regardless of marital status, has been recognized by India's SC as a basic right bestowed by Art 21 of the Const. Forced sexual cohabitation is a violation to that basic right. There is no opposing finding that marital relationship takes away an individual's right to privacy.

The "right to life" has been interpreted by the courts to include the right to live in dignity. Exception clause 2 of Sec 375 of the IPC, which fails to dissuade husbands from participating in acts of forced sexual intercourse with their wives, has a negative impact on women's physical and mental health, as well as their ability to live with dignity.

Consequences of Marital Rape
Marital rape is a traumatic form of rape since the husband is more likely to rape the victim multiple times due to their proximity and access.

Naz Foundation V. Government of Delhi & Ors. (2009)
The Delhi HC decided, among other things, that if any sort of morality may pass the test of compelling state interest, it must be constitutional morality, not public morality.

The negative impact on women is inhumane, and hiding behind the sanctity of the institution of marriage is cruel.

The belief that rape can only be perpetrated by a stranger on a woman, and consequently that it cannot be committed by a husband on his wife, is inhumane and unconstitutional. Need for Criminalizing of Marital Rape?

Why Marital Rape Should be Criminalized?
Many famous jurists, feminists, and social activists have advocated for the criminalization of marital rape.

Arguments for criminalizing marital rape are as follows:
  • Marriage cannot be interpreted as authorizing a husband to force sexual relations on demand. Marriage, on the other hand, cannot be interpreted as irrevocable implicit consent.
  • The right to equality is protected by Art 14 of the Indian Const. and marital rape is a violation of that right. Forced sexual cohabitation is likewise a violation of Art 21.
  • Marital rape is contrary to sec 375 of the IPC, which aims to protect women and punish those who abuse them by inhumane acts. Because the penalties of rape are the same whether a woman is married or not, Sec 375 cannot achieve its goal by exempting husbands from punishment.
  • If marital rape is not criminalized, a woman's dignity is suppressed, which means her dignity is valued less while she is married. It's a human rights violation. A married woman has the same right to manage her body as an unmarried woman.
  • In Joseph Shine V. Union of India (2018) Justice Chandrachud asked whether a woman or a man loses sexual autonomy when they married 'No, I believe.' He also stated that "the right to refuse sex after marriage should exist."
  • Criminalizing marital rape protects women's basic human rights while also providing them with protection from the most terrible crime that may occur within a marriage. They will have the right to say "NO" if they do not wish to engage in sexual activity. Most crucially, making marital rape a crime will give immediate legal recourse for victims.
  • A PIL has been filed against Sec 9 of the Hindu Marriage Act, 1955, because it pushes estranged spouses to reunite. A partner who is living apart can force their spouse to stay together by taking their case to court and requesting restitution of conjugal rights. This can also be a component that leads to marital rape in a marriage.

Recommendations of the J.S. Verma Committee
The committee studied sect 375 IPC exception (2) and concluded that it should be eliminated. According to the committee, the relationship should not be used to justify leniency in rape cases. The fact that the victim and the defendant are married does not excuse the rape. The committee proposed that marital rape be added to the Criminal Law Amendment Act of 2013.

Arguments Against Criminalizing of Marital Rape
Many people believe that criminalizing rape in marriage will be harmful to Indian society
  • The Union Govt. claimed in a January 2022 submission to the Delhi HC that criminalizing rape would undermine the marriage institution and make harassing spouses easier.
  • In my opinion, marital rape should not be treated as a crime in India," Justice Dipak Mishra, the former Chief Justice of India, remarked, "since it will cause anarchy in homes, and our society relies on its family platform for its success in protecting family values." Mishra, the former Chief Justice of India, remarked, "since it will cause anarchy in homes, and our society relies on its family platform for its success in protecting family values.
  • Because there is no lasting evidence in such a situation, a man's sexual acts with his wife cannot be documented as evidence in court. Before the rape, the spouses may have had consensual sexual intercourse, therefore DNA or semen samples would be irrelevant.
  • It is quite impossible to prove the absence of consent because both the husband and wife would have had frequent sexual contact.

Legislation Governing Marital Rape in India- A Critical Analysis
India is one of just 36 countries in the world that has not criminalized marital rape. The majority of developing countries have not yet made marital rape a criminal offence.

Domestic Violence Act 2005
Marital rape is classified as a form of domestic abuse under the Protection of Women from Domestic Violence Act of 2005. The Act of 2005 protects women against all types of physical and mental violence, including sexual abuse. Marital rape carries a shorter prison sentence than non-marital rape under the Domestic Violence Act.

Indian Penal Code 1860
Sec 375(2) states that sexual intercourse between a man and his own wife is not considered rape if the wife is not under the age of 15.

Loopholes in The Legislation:
  1. Marital rape carries a shorter sentence in prison than non-marital rape under the Domestic Violence Act 2005.
  2. The domestic violence legislation provides a civil, not a criminal, remedy.
  3. Rape is illegal under section 375 of the Indian Penal Code, which is created to keep women and punish those who exploit them by inhumane crimes. Sec 375 cannot achieve its purpose by exempting husbands from punishment because the penalties for rape must be the same whether a woman is married or not.
  4. Art 21 of the Indian Const. which gives the right to privacy, right to live with dignity to every citizen is also violated by Exception clause 2 of Sec 375 of the IPC.
  5. Despite the fact that the Indian Const promises equality to all, Indian criminal law discriminates against women who have been raped by their husbands.

Recent Scenario:

The Delhi HC has issued a split decision on whether or not to decriminalize marital rape in the country. Exception 2 of the IPC's Sec 375, which decriminalized rape inside marriage, was struck down by Justice Rajiv Shakdher, but it was opposed by Justice C. Hari Shankar. "Sexual intercourse or sexual activities by a man with his own wife, the wife not being under fifteen years of age, is not rape," according to Exception 2 of Section 375. The SC of India raised the age to 18 in October 2017.

It took the court 7 years to examine petitions to make marital rape a crime.

"A man is a man; an act is an act; rape is rape, whether committed by a man, the 'husband,' on a woman, the 'wife," Justice M Nagaprasanna of the Karnataka HC stated in a single-judge bench. The court cited the "age-old...regressive" belief that "husbands are the rulers of their wives, and their body, mind, and soul should be effaced."

Nimeshbhai Bharat bhai Desai vs. State of Gujrat (2018)
The Gujrat HC recently declared marital rape to be a disgraceful offence and elaborately addressed the issue, stating that "making wife rape illegal or an offence will remove destructive attitudes that promote marital rape is recognized as court held that the husband is only liable for outraging her modesty and unnatural sex."

The hypothesis that 'Exception clause 2 of section 375 of Indian Penal Code 1860 violates the Article 14 and Article 21 of Indian Constitution' is tested positive throughout the study.

  • Clause 2 of Sec 375 of IPC should be struck down so that women victim can get free legal recourse.
  • Govt. should come with schemes to protect the married women from this inhuman crime of rape within the confinement of marriage.
  • NGOs should come forward to help the victims to raise their voice against the crime
In India, marital rape is not totally prohibited. Art. 14 and 21 of the Const are violated by Exception 2 to Sec 375 of the IPC. It is past time for Indian law to recognize the brutal nature of this provision and strike it down.

Rape is rape, whether it is done by a stranger on an unmarried woman or by her husband on a married woman.

  1. Vidhik Kumar, Marriage or License to Rape? A Socio-Legal Analysis of Marital Rape in India, 6 DIGNITY, 1, 1-2(2021)
  2. Indian Penal Code, 1860 375(2), No. 45, Acts of Parliament 1860(India)
  3. Criminal Procedure Code, 1973 198(6), No.2, Acts of Parliament 1973(India)
  4. Independent Thought v/s Union of India, AIR 2017 SC 4904
  5. Queen Empress v. Haree Mohan Mythee, Criminal LQ/CalHC/1890/71
  6. Liza Arora, A Need for Criminalization of Marital Rape, IPLEADERS (May 11 2022; 3:47 PM) -
  7. Jennifer A. Bennice and Patricia A. Resick, Marital Rape: History, Research, and Practice, ResearchGate, 228, 230-232(2003)
  8. Dr. Bhavish Gupta and Dr. Meenu Gupta, Marital Rape: Current Legal Framework in India and the Need for Change, 1, GJLS, 17, 20-22(2013)
  9. Anuja Kapur V. Union of India, DLT, 7256, 2019
  10. Saloni Pradhan & Shiv Chhatrala, Rape in the Secrecy of Marriage: Need for Criminalization, ACADEMIKE (May 11 2022; 8:30 PM) -
  11. INDIA CONST. art.14
  12. Sarthak Makkar, Marital Rape: Non Criminalized Crime in India, HARVARD HUMAN RIGHTS JOURNAL (May 12 2022; 1:57 AM) -
  13. Budhan V. State of Bihar, AIR (1955) SC 191 (India)
  14. INDIA CONST. art.21
  15. The State of Karnataka V. Krishnappa, (2000) 4 SCC 75 (India)
  16. Justice K.S. Puttuswamy (Retd.) V. Union of India, (2017) AIR 2017 SC 4161 (India)
  17. Harman grover, Criminalization of Marital Rape in India, LEGAL SERVICE INDIA (May 12 2022; 3:35 AM) -
  18. Naz Foundation V. Government of Delhi & Ors, WP(C) No.7455/2001
  19. Anuradha.P.M, Marital Rape in India: History, Consequences and Necessity to Penalize the Crime, THE FREE PRESS JOURNAL, (May 12 2022; 4:56 AM) -
  20. Joseph Shine V. Union of India, 2018 SCC Online SC 1676
  21. Ankur, Why Marital Rape should be Criminalized and Why Should not? WRITINGLAW (May 10 2022; 9:23 PM) -
  22. NDTV - (Last Visited on May 12 2022)
  23. THE HINDUSTAN TIMES - (Last Visited on May 13 2022)
  24. Priyali Prakash, Explained: Marital rape in India: The history of the legal exception, THE HINDU (May 13 2022; 3:00 PM) -
  25. THE INDIAN EXPRESS - (Last Visited on May 13 2022)
  26. Nimeshbhai Bharat bhai Desai vs. State of Gujarat, 2018 SCC Online Guj 732

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