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Marital Rape: Choosing Custom Over Consent?

A woman is the companion of man, gifted with equal mental capacities. She has the right to participate in the minutest details in the activities of man, and she has an equal right of freedom and liberty with him. She is entitled to a supreme place in her own sphere of activity as man is in his.

This ought to be the natural condition of things and not as a result only of learning to read and write. By sheer force of a vicious custom, even the most ignorant and worthless men have been enjoying a superiority over women which they do not deserve and ought not to have. Many of our movements stop half-way because of the condition of our women in the society. [1]

Family is supposed to be the safest place in human life but imagine a situation where violence takes place within the circle of trust. It is truly horrifying. The present paper sheds light upon the loopholes embedded in our justice system by extensively discussing marital rape and how it violates the basic rights of an individual.

It puts emphasis on the need for the criminalization of spousal rape in our country. The paper discusses how the society and legislature have failed to even recognize marital rape as ‘rape' as they do not want to disintegrate the divinity of the marriage institution.

Introduction
Every society grapples with innumerable crimes. Some are nugatory in nature while others are atrocious, disgraceful and unpardonable like rape, murder, human trafficking, etc. The crimes committed not only have a profound impact on the physical and mental health of the victims which is associated with long-term ramifications but to the society at large.

Rape is the most horrific, monstrous, and wicked of all crimes which completely destroys woman 's solemnity, chastity, and pride. The victims are traumatized and suffer more than the flesh and blood can stand. It is alarming and unnerving to know that even when reported cases reach the court, only a few victims stick to their stand.

This clearly highlights the grim reality of the society which looks upon the victim as more of an offender while the real perpetrator of the crime is seen with a lenient eye and walks away freely. The institution of marriage has been sanctified in a country like India which is considered to be the abode of Gods and Goddesses.

Marriage has been considered as implied consent to sexual intercourse even if it is against the will of a person. Marital Rape is the most abhorrent and barbaric crime committed against women. It occurs when one spouse has non-consensual or forced sexual intercourse with the other under the threat of bodily harm or when she is unable to give consent. Marital rape can be defined as unwanted coitus where the perpetrator is the husband and the victim is the wife.

Though marital rape is the most common and repugnant form of masochism in Indian society, it is hidden behind the iron curtain of marriage. Social practices and legal codes in India mutually enforce the denial of women 's sexual agency and bodily integrity, which lie at the heart of women 's human rights.[2]

Position In Indian Law

The word Rape has been defined in Section 375 of Indian Penal Code as a man is said to commit rape who has sexual intercourse with a woman against her will, without her consent, by putting her in fear of death or of hurt, with or without her consent when she is under the age of sixteen, etc.

It carries with it one exception in case of marital rape which states that:
sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape. However, one specific form of exception to the marital case was added which stated that sexual intercourse with one 's own wife without her consent under a decree of judicial separation is punishable to 2-7 yrs of imprisonment.[3]

There exists a lacuna in our legal system which does not consider an act of unwanted sexual intercourse as rape when committed by the husband. It does not criminalize marital rape as a grave offense against women which exposes them to the society as weaker sex. Our legal system has failed to apprehend that rape is rape.

Forced sexual intercourse is a crime, no matter if the miscreant is the husband, friend, or a stranger. One of the long-defunct notions of marriage regards women as mere property of their husbands. According to common law coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent cannot be revoked.[4]

Sir Matthew Hale propounded a theory explaining that the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given her up in this kind unto her husband which she cannot retract.[5] Hence, our own laws vouchsafed a parapet to the husband in respect of his wife, solely on marital relations.
India has always embraced a patriarchal society.

The dogma that home is the woman 's real domain and marriage is the ultimate goal of life hasn't changed much. Consummation of marriage is the most pivotal part of a woman 's life. Our society has been nescient to the concept of marital rape. They strongly believe that marriage is the name for the irrevocable consent given by a woman to sexual intercourse which purely depends upon the whims and fancies of the husband.

Bertrend Russell has showered his views on the concept of marriage:

I believe the marriage to be best and most important relation that can exist between two human beings. The essence of good marriage is respect for each other 's personality.

But the debates about marriage make clear part of our problem as a society. We have lost the track of the true meaning of marriage. Greater confusion arises when defining sexual violence. When sexual abuse occurs within marriage, the victim often feels perturbed and finds herself in a dilemma as to whether she has been raped or not.

This is partially due to the general acceptance that it is the wife 's duty to fulfill her husband 's sexual desires and needs. Many women believe that they don't have the right to refuse sex as ‘sex demand' is an unwritten part of a marriage contract.[6]

The Law Commission of India in its 172nd report dealt with the issue of criminalizing marital rape. It recommended that an exception be added to Section 375 of IPC where sexual intercourse by a husband with his own wife, the age of the wife not being under 16 years would not amount to sexual assault.[7]

An NGO named ‘Sakshi' suggested deletion of this exception as providing a shield to husband while he is committing wrong is unacceptable. The LCI didn't see it in the same light and hence held that if the exception is deleted, it would amount to superfluous and uncontrolled interference with the marital relationships. They strongly adhered to the fact that there are no worthy why 's and wherefores to delete or amend the provisions mentioned in IPC relating to marital rape.

The Protection of Women from Domestic Violence Act, 2005 was passed to provide more effective protection of rights of women guaranteed under the constitution who are victims of any violence within the family or outside.[8] Section 3 of the act defined the term Domestic violence which was further divided into three kinds of abuse: Physical, Sexual and Emotional. Though it did provide a safeguard against transgression but failed to criminalize such acts.

The data recorded by National Health and Family Survey-4 has stopped dead in its tracks. The research has shown that women 's experience of physical violence increases with age, from 17 percent among women age (15-19) to 35 percent among women age (40-45). The report also mentioned that sexual violence is most often committed by individuals with whom women share an intimate relationship.

Among ever-married women aged 15-49 that have ever experienced sexual violence, 83 percent report their current husband as perpetrators. One-third of married women (33%) have experienced spousal physical, sexual and emotional violence by their current husband.[9]

Six percent of women have reported that their husband used physical force to have sexual intercourse when they did not want to and three percent reported that their husband forced them to perform sexual acts when they did not want to.[10] So while the data on marital rape exists, ‘marital rape' as a ‘crime' does not exist.[11]

Section 90 of the Indian Penal Code defines Consent which says that consent is not such consent when given under fear of injury or misconception of a fact.[12] In this context, Supreme Court laid down in the case of State of HP v Mango Ram[13] that:
Submission of body under fear of terror cannot be construed as a consented sexual act. Consent for the purpose of section 375 requires voluntary participation. Hence a non-consensual sexual act is another term for rape.

At present marital rape has been outlawed in 52 countries like Canada, South Africa, South Korea, and Australia etc. Prior to 1983, rape was considered an offence outside of marriage. This meant that a husband cannot be charged for raping his wife.

Later bill C-127 came into effect on 4th January 1983, making a sexual assault against one 's wife as an offence in Canada.[14] South Africa criminalized marital rape in 1993, reversing the common law principle that a husband could not be found guilty of raping his wife.[15] In Australia, ‘marital rape immunity' was legislatively abolished in all jurisdictions from 1976.[16] A similar law was adopted by other countries too.

The nation-wide outrage over the gruesome and dreadful Nirbhaya gang-rape case led to the formation of Justice Verma Committee which provided specific recommendations to the criminal law to constructively deal with the nefarious offences against women. The committee identified lack of good governance to be the genesis for violence against women.

They proposed[17] that marital rape as an exception should be removed and the law ought to specify that:
a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation. They also suggested that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.

The dissenting opinion given by Shri D Raja and Shri Prasanta Chatterjee, both being the Member of Rajya Sabha, on 167th report of the DRPS Committee on Home Affairs on the Criminal Law Amendment Bill, 2012 expressed their dissatisfaction with the way the Justice Verma Committee recommendations were toned down.

The exemption of marital rape from being considered as an offence under Section 375 of the Indian Penal Code is considered contrary to the provisions of Indian Constitution which considers all women as equal human beings who have a right to live with dignity and free from violence within and outside marriage.[18]

Criminal Law Amendment Bill, 2012 made a provision to replace the word ‘Rape' with ‘sexual assault' in order to make the offence gender neutral and also widen its scope but remained as silent as the grave with respect to the issue of marital rape.

Courts in India have used the exception provided in Section 375 to acquit men accused of committing marital rape. In May 2014, a fast-track court in Delhi designated to hear cases of sexual assault against women relied on this exception to rule that sexual intercourse between a legally wedded husband and wife even if forcible, is not rape.[19]

Isn't it doleful to know that a country which promises to protect its citizens from external and internal perils has utterly failed to even recognise a band of beings as a normal human being with all the rights mentioned in the constitution secured and assured? The vulnerable condition of women is a clear embodiment of how our justice system has become blind as a bat towards them and such horrific crimes. It appears as if marriage is the payment made for buying consent.

International Conventions

The state which acts as the guardian of all citizens must provide a safe environment to women at all times, who constitute half the nation 's population; and failure in discharging the public duty renders it accountable for the lapse. Crimes against women are an egregious violation of several human rights demanding strict punishment with deterrence to prevent similar crimes in the future by the likeminded.[20]

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979 by the United Nations General Assembly is often described as an International Bill of rights for women.[21]

The committee on the elimination of discrimination against women has urged the state party to implement the recommendations made by the Justice Verma committee and to amend the Criminal Law (Amendment) Act, ensuring that ‘marital rape' is defined as a criminal offence.[22] As India has ratified to the convention on 25th June 1993, it is legally bound to put its provisions into practice but it had failed to concur with it and hence deprived women of their basic human rights.

CEDAW in its eleventh session (1992) held that:

Family violence is one of the most insidious forms of violence against women. It is prevalent in all societies. Within family relationships, women of all ages are subjected to different kinds of violence which are perpetuated by traditional attitudes. Lack of economic independence forces many women to stay in a brutal relationship.[23]

Hence it made specific recommendations and urged the state parties to take appropriate and effective measures to overcome all forms of gender-based violence, whether public or private act.[24]

It should ensure that laws against family violence and abuse, rape, sexual assault and, other gender-based violence give adequate protection to all women and respect their integrity and dignity. Appropriate protective and support services should be provided for victims.[25] The Special Rapporteur on violence against women[26] has beaten the drum for including the definition of marital rape and declaring it to be a criminal offence.

Article 2 of the Declaration on Elimination of Violence against women, 1993, says that violence against women shall be understood to encompass sexual abuse, dowry-related violence, marital rape, battering, etc. And Article 4 provides that the state should pursue by all appropriate means and without delay, a policy of eliminating violence against women and, to this end should (a) develop penal, civil, labour and administrative sanction and domestic legislation to punish and redress wrongs caused to women; women who are subjected to violence should be provided with access to the mechanism of justice. [27]

Are We Defying Constitutional Provisions?

The state has a moral imperative to discharge its duty towards the citizens which are assured by the Constitution. Equality acts as a nut and bolt of the Constitution. While our Constitution guarantees equality to all irrespective of their caste, creed, color, sex, etc. Indian Criminal law discriminates against victims raped by their own husbands.

Equality of citizen 's right is one of the fundamental pillars on which edifice of Rule of Law rests. All actions of the state have to be fair and for legitimate reasons. If the state leaves the existing inequalities untouched by its laws, it fails in its duty of providing equal protection of laws to all persons.[28] The principle of equality is the essence of democracy, and accordingly a basic feature of the constitution.[29]

In Michigan Rubber Ltd v State of Karnataka,[30] it was said that The basic requirement of Article 14 is fairness in action by the State and non-arbitrariness, in essence, and substance is the heartbeat of fair play. An action which is unfair or unreasonable cannot be sustained. The State is required to act bona fide and not arbitrarily when its action is like to prejudicially affect the rights of others.[31]

According to Section 375 of IPC, the authorized age of consent for sexual intercourse is 18 years, meaning thereby that sexual intercourse with a child below 18 years would amount to rape, even if it was with consent. Indian Law recognizes a girl below 18 years of age as a child and hence, specifically for this reason penalizes sexual intercourse with them.

But by virtue of Exception 2 of Section 375 of IPC, if a girl child between 15-18 years is married, her husband has every right to have non-consensual sex owing to the fact that she is married and now she is not more than a mere property to him which he has legally and morally acquired.

Exception 2 prima facie violates Article 14 of the constitution by creating an irrational distinction between married and unmarried women. It denies married women above 18 years of age protection from inhuman acts only on the ground of the perpetrator being their husband.

It has created two unequal categories of women based on their marital status. In doing so, the exception makes the possible victimization of married women for no reason other than their marital status while protecting unmarried women from those same acts. [32]

The Indian Judiciary has given an exemption to the husband which has frustrated the objective which needs to be achieved. They have failed to discern that the natural corollary which follows rape is borne in the same manner by every woman whether married or unmarried. It is pivotal to remember that the test of equality should not be dominated and predetermined by the patriarchal ideologies of the society in order to decide what reasonable classification is.

For the classification to be reasonable, it must fulfill two substantial conditions - First, it must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others, and second, the differentia must have a rational relation to the object sought to be achieved by the legislation.[33]

While Section 375 criminalizes the offense of rape and focuses on protecting the rights of the victim, it withdraws its defense when comes to marriage. Married women, just like others are in need of protection too. Thus, this classification is unreasonable, biased and hence violates Article 14 of the constitution.

The variance in the treatment given to the married women rests on the conjecture that they have surrendered their body and soul in the hands of their husbands as this is what a domestic goddess would do.

Terry Pratchett in his book Equal Rites has said that:

They say a little knowledge is a dangerous thing, but it 's not one half so bad as a lot of ignorance.[34] Our legal system has turned a deaf ear to the noise of pain and suffering echoing from every home on the belief that removing this exception from the law would rupture the concept of marriage and will diminish its sacredness. It 's high time that our lawmakers take a bite of reality sandwich. Tying a knot together doesn't give an upper hand to men to destroy the chastity of women.

On a combined reading of C.R. v United Kingdom[35]and Eisenstadt v Baird,[36] it is quite clear that Rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Similarly, a rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault. A rape that actually occurs cannot legislatively be simply washed away or legislatively denied as non-existent.

Marital exception also violates Article 21 of the constitution which states that No person shall be denied of his life and personal liberty except according to the procedures established by law. The scope of this section is far and wide. It includes the right to a safe environment, working conditions, good health, live with dignity, privacy etc.

In the case of Rudul Shah v State of Bihar[37], the court has, innumerable times, declared that ‘Right to Life' does not merely mean animal existence but means something more, namely, the right to live with human dignity. Right to Life would, therefore include all those expects of life which go to make a life meaningful, complete and worth living.

The Hon 'ble Supreme Court in the case of Shri Boddhisattwa Gautam v Miss Subhra Chakraborty[38] held that rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into a deep emotional crisis.

Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of victim 's most cherished of the fundamental rights, namely, the Right to Life contained in Article 21. Women also have right to liberty and freedom and also to be respected and treated as equal citizens. Their honour and dignity cannot be violated and touched.

The Right to Privacy is protected as an intrinsic part of Right to life and Personal Liberty under Article 21, and it is a necessary condition precedent to the enjoyment of any guarantees under Part III of the constitution. Privacy is the concomitant of the right of the individual to exercise control over his or her personality. It ensures that a human being can lead a life of dignity by securing the inner recesses of human personality from unwanted intrusions.[39]

The Allahabad High Court recently recapitulated that forced unnatural sex amounts to marital cruelty and this can be one ground for divorce under Hindu Marriage Act, 1956.[40] Unnatural sex, sodomy, oral sex and sex against the order of nature, against the wishes of women or wife or anybody is not only a criminal offence but also a marital wrong and amounts to cruelty which is a good ground for the dissolution of marriage. Any such thing which brings the wife to indignity and causes physical and mental agony and pain is cruelty. Forcible sex is the intrusion in the privacy of the wife.[41]

In the case of Independent Thought v Union of India[42], Supreme Court held that Article 21 of the constitution gives a fundamental right to live with dignity. The right to maintain bodily integrity is effectively destroyed by a traditional practice sanctified by IPC. If times and situations change, so must the views, traditions, and conventions. Marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal and nothing can destroy the institution of marriage except a statute that makes it illegal or punishable.

The Protection of Human Rights Act, 1993 defines human rights in Section 2(d) as meaning the rights relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in international covenants and enforced by courts in India.

There can be no doubt that if a girl child is forced by her husband into sexual intercourse against her will or without her consent, it would amount to a violation of her human right to liberty or her dignity guaranteed by the Constitution or at least embodied in international conventions accepted by India such as the Convention on the Rights of the Child (the CRC) and the convention on the elimination of All Forms of Discrimination Against Women (the CEDAW).

In the case of State of Karnataka v Krishnappa[43] court held that:
Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience.

Rape is the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of women and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates the right to life guaranteed under Article 21 of the constitution. This was the observation of the court in the case of State of Haryana v Janak Singh.[44]

In Suchita Srivastava v UT of Chandigarh[45], the right to make a reproductive choice has been equated with personal liberty under Article 21 of the constitution, privacy, dignity and, bodily integrity. It includes the right to abstain from procreating. The crucial consideration is that a woman 's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of woman 's right to refuse participation in sexual activity.

The above-mentioned cases and their judgments clearly highlights that exception 2 of Section 375, IPC is an infringement of Article 14 and 21 of the constitution. It 's time that the Indian Judiciary take steps to understand the nature of this provision and strike it down.

Conclusion
In a country like India, family as an institution is the epitome of all cultural, moral and social values. Criminalizing any offence within it has the power of banjaxing the foundation on which it is built. The culture of strong family ties cannot dwindle marital rape as a lesser offence. Indian society cannot make women to settle for less in order to protect the institution of marriage. The legislature acting as our chaperone should intercede effectively in this area by following myriad of recommendations made by various committees.

It is appalling to note that even after being aware of all the statistics, studies, reviews and, judgments considering women, either we have not been able to come out with effective rules or regulations or have undoubtedly failed to put them in effect. The contemporary state of the woman is mind-boggling. Our constitution which promotes gender equality has not criminalized the sin of marital rape. This is the biggest irony.

Minister of Women and Child Development Maneka Gandhi told parliament:

It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian Context due to various factors like level of education or illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.[46] This is a clear manifestation of how women supports other women in our country.

Marital rape is a Gordian knot that deserves our government's attention. Rape by husband is akin to rape by a stranger. Being known to the victim doesn't make him any less of an offender. Positive changes have been taking place, yet additional steps are fundamental to improve the condition. The time has come to change the archaic laws and discover what is beneficial for the citizens.

Few questions that might strike all of us are - Does marriage give an inalienable right to husband to rape his own wife? Is marriage a permit for men to rape women? Well, we 'll keep on envisioning and contemplating, while somewhere, someone is going to be raped again. If this brutal act is criminalized, our society will definitely become a better place to live in. For a very long time, women have been fighting for their rights, but even after modernization, we are still stuck at the place, where we started.

Apart from judicial awakening, general awareness also has an important role to play. I think it's dotish and naive of us to think that men and women are on equal footing because women have always been superior A woman deserves to be recognized as a separate individual and not subordinate to man. Spousal Rape is a serious crime against women as victims suffer during the act and also after it. They undergo deep emotional and physical distress.

Sometimes, a wife may see ‘forced sexual intercourse' either as a part of marital conflict or resulting because of her own sexual inadequacy because that's what we are taught. It's a duty of the wife to please her husband, even if this demands losing her solemnity. But anyone who forces his body over another is rape and hence deserves no defence. The person is liable to be punished in the same manner as other culprits of rape. We need an era of retribution now. Susan B Anthony has said men, their rights and nothing more; women, their rights and nothing less.[47]

India was and is still trapped in the chains of patriarchy. It is perturbing to know that the country which worships thousands of goddesses has failed to pay homage to the actual manifestation of God on earth. We sometimes treat fictional characters as if they are for real, while sometimes we treat real people as if they are fictional characters. Sometimes we see things but with closed eyes. There is a pressing need for redrafting the existing provisions regarding punishment, procedure, conviction, etc in order to declare this offence as a ‘social evil'.

References
Books:

  • Durga Das Basu, Introduction to the Constitution of India, (22nd ed. Lexis Nexis)
  • M.K. Gandhi, Speeches and Writings (1933)
  • Sir Matthew Hale, History of the Pleas of the Crown, 1 Hale PC (1736)
  • V.K Dewan, Laws on Protection of Women from Domestic Violence Act 2005, (3rd ed. 2017)
  • Biswaranjan Panda, New Definition of rape after Criminal Law Amendment Act,2013, Lawyers Club India (Mar. 26, 2019, 5:00 PM)
  • Caroline Alphonso & Marjan Farabaksh, Canadian law changed only 26 years ago, The Globe and Mail Inc. (Mar. 29, 2019)
  • Government denies marital rape occurs, National Survey shows 5.4% of married women are victims, The Wire (Mar. 27, 2019), https://thewire.in/gender/indian-law-denies-marital-rape-exists-5-4-married-indians-claim-victims
  • Meera Emmanuel, Forcible sex- Unnatural or natural, Bar and Bench (Jun. 15, 2019, 5:00 PM), 11
  • Sarthak Makkar, Marital Rape- A Non-Criminalized Crime in India, Harvardhrj (Jun. 10, 2019, 2:00 PM),
  • Saurabh Mishra & Sarvesh Singh, Marital rape- Myth, Reality and need for Criminalization, EBC-India (Mar. 20, 2019, 2:27 PM) http://www.ebc-india.com/lawyer/articles/645.htm
  • Susan B Anthony, Women empowerment sayings and quotes, Wise old sayings (Jun. 24, 2019, 6:00PM)
  • Terry Pratchett, Equal Rites Quotes, Goodreads (Jun. 11, 2019, 3:25 PM)
  • TNM Staff, UN official says Marital rape is rape, The News Minute (Jun. 24, 2019, 1:00 PM), 12


Cases:

  • Bharat Petroleum Corp Ltd v. Maddula Ratnavalli & Ors, 6 S.C.C 81 (2007)
  • C.R. v. United Kingdom, ECHR, Ser. A. No. 335-C (1995)
  • Eisenstadt v. Baird, (1972) S.C.C. OnLine U.S. S.C. 62
  • Hari Ram v. State of Haryana, 3 S.C.C. 621 (2010)
  • Independent Thought v. Union of India, 10 S.C.C. 800, (2017)
  • K.S Puttaswamy v. Union of India, 10 S.C.C. 1 (2017)
  • Michigan Rubber Ltd v. State of Karnataka, 8 S.C.C. 216 (2012)
  • Rudul Shah v. State of Bihar, 4 S.C.C. 141 (1983)
  • Sanjeev Gupta v. Ritu Gupta, S.C.C. Online, (All.: 2019)
  • Shri Bodhisattwa Gautam v. Shubra Chakraborty, 1 S.C.C. 490 (1996)
  • State of Haryana v. Janak Singh, 9 S.C.C. 431 (2013)
  • State of HP v. Mango Ram, 7 S.C.C. 224 (2000)
  • State of Karnataka v. Krishnappa, 4 S.C.C. 25 (2000)
  • State of West Bengal v. Anwar Ali Sarkar, A.I.R. 75 (1952)
  • Suchita Srivastava v. UT of Chandigarh, 9 S.C.C. 1 (2009)


Reports:

  • Amnesty International, Submission to the UN Committee on the elimination of discrimination against women, Fifty-Eight Session (June. 2014)
  • Committee on the Elimination of Discrimination Against Women, General Recommendation made by the Committee on the Elimination of Discrimination Against Women, Eleventh Session, UN, (1992).
  • Convention on the Elimination of all Forms of Discrimination Against Women, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of India, U.N. CEDAW/C/IND/CO/4-5 (Jul. 24, 2014).
  • Convention on the Elimination of all Forms of Discrimination Against Women, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of India, UN, (2014)
  • Declaration on the Elimination of Discrimination Against Women, United Nation General Assembly, (1994).
  • G.A. Res. 48/104, Declaration on the Elimination of Discrimination Against Women, (Dec. 23, 1993)
  • Id, 24 (a)
  • Id, 24 (b)
  • India, Submission to the UN Committee on the elimination of discrimination against women, 58th session, Amnesty International, (June 2014)
  • Justice Verma, Report of Justice Verma Committee on the Amendments to Criminal Law, (Jan. 23, 2013).
  • Ministry of Health and Family Welfare, National Family and Health Survey, NHFS-4, (2014-2015).
  • Mr. Justice B.P Jeevan Reddy, 172nd Report on Review of Rape Laws March, Law Commission of India, (2000)
  • Rajya Sabha Parliamentary Standing Committee on Home Affairs, One Hundred and Sixty Seventh Report on the Criminal Law (Amendment) Bill, 2012, RSS, Delhi (Mar. 4, 2013)
  • Rajya Sabha Parliamentary Standing Committee on Home Affairs, One Hundred and Sixty Seventh Report on the Criminal Law (Amendment) Bill, 2012, RSS, Delhi, (4th March, 2013)
  • Rashid Manjoo, Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to India, U.N. A/HRC/26/38/Add.1 (April. 1, 2014)
  • Report of Justice Verma Committee on the Amendments to Criminal Law, (2013)
  • supra, at 7
  • U.N. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, Eleventh Session (1992)
  • United Nations, Convention on the Elimination of all Forms of Discrimination Against Women, UN Women, (1979)


Statutes:

  • Criminal Law Consolidation Act, § 73(3) (1935)
  • Indian Penal Code, § 90 (1860)


End-Notes:

  1. M.K. Gandhi, Speeches and Writings (1933)
  2. Saurabh Mishra & Sarvesh Singh, Marital rape- Myth, Reality and need for Criminalization, EBC-India (Mar. 20, 2019, 2:27 PM) http://www.ebc-india.com/lawyer/articles/645.htm
  3. Biswaranjan Panda, New Definition of rape after Criminal Law Amendment Act,2013, Lawyers Club India (Mar. 26, 2019, 5:00 PM), http://www.lawyersclubindia.com/articles/New-definition-of-rape-after-the-criminal-law-amendment-act-2013-9000.asp
  4. Justice Verma, Report of Justice Verma Committee on the Amendments to Criminal Law (Jan. 23, 2013).
  5. Sir Matthew Hale, History of the Pleas of the Crown 1 Hale PC (1736).
  6. V.K Dewan, Laws on Protection of Women from Domestic Violence Act 2005 (3rd ed. 2017).
  7. Mr. Justice B.P Jeevan Reddy, 172nd Report on Review of Rape Laws March, LCI (2000).
  8. Protection of Women from Domestic Violence Act, Pub. L. No. 43, (2005).
  9. Ministry of Health and Family Welfare, National Family and Health Survey, NHFS-4 (2014-2015).
  10. Sheikh Saaliq, Every third women in India suffers sexual. Physical violence at home, The News 18 (Jul. 5, 2019, 3:00 pm),
    https://www.news18.com/news/india/the-elephant-in-the-room-every-third-woman-in-india-faces-domestic-violence-1654193.html
  11. Government denies marital rape occurs, National Survey shows 5.4% of married women are victims, The Wire (Mar. 27, 2019), https://thewire.in/gender/indian-law-denies-marital-rape-exists-5-4-married-indians-claim-victims
  12. Indian Penal Code, § 90 (1860).
  13. State of HP v. Mango Ram, 7 S.C.C. 224 (2000).
  14. Caroline Alphonso & Marjan Farabaksh, Canadian law changed only 26 years ago, The Globe and Mail Inc. (Mar. 29, 2019), https://www.theglobeandmail.com/news/world/canadian-law-only-changed-26-years-ago/article1150644/.
  15. supra, at 114.
  16. Criminal Law Consolidation Act, § 73(3) (1935).
  17. supra, at 114.
  18. Rajya Sabha Parliamentary Standing Committee on Home Affairs, One Hundred and Sixty Seventh Report on the Criminal Law (Amendment) Bill, 2012, RSS, Delhi (Mar. 4, 2013).
  19. Amnesty International, Submission to the UN Committee on the elimination of discrimination against women, Fifty-Eight Session (June. 2014).
  20. supra, at 7.
  21. United Nations, Convention on the Elimination of all Forms of Discrimination Against Women, UN Women, (1979).
  22. Convention on the Elimination of all Forms of Discrimination Against Women, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of India, U.N. CEDAW/C/IND/CO/4-5 (Jul. 24, 2014).
  23. U.N. Committee on the Elimination of Discrimination Against Women, General Recommendation No. 19: Violence Against Women, Eleventh Session (1992).
  24. Id, 24 (a)
  25. Id, 24 (b)
  26. Rashid Manjoo, Report of the Special Rapporteur on violence against women, its causes and consequences, Mission to India, U.N. A/HRC/26/38/Add.1 (April. 1, 2014).
  27. G.A. Res. 48/104, Declaration on the Elimination of Discrimination Against Women, (Dec. 23, 1993).
  28. Hari Ram v. State of Haryana, 3 S.C.C. 621 (2010).
  29. Durga Das Basu, Introduction to the Constitution of India (22nd ed.).
  30. Michigan Rubber Ltd. v. State of Karnataka, 8 S.C.C. 216 (2012).
  31. Bharat Petroleum Corp. Ltd. v. Maddula Ratnavalli & Ors, 6 S.C.C. 81 (2007).
  32. Sarthak Makkar, Marital Rape- A Non-Criminalized Crime in India, Harvardhrj (Jun. 10, 2019, 2:00 PM), https://harvardhrj.com/2019/01/marital-rape-a-non-criminalized-crime-in-india/
  33. State of West Bengal v. Anwar Ali Sarkar, A.I.R. 75 (1952).
  34. Terry Pratchett, Equal Rites Quotes, Goodreads (Jun. 11, 2019, 3:25 PM), https://www.goodreads.com/work/quotes/583611-equal-rites
  35. C.R. v. United Kingdom, E.C.H.R, Ser. A. No. 335-C (1995).
  36. Eisenstadt v. Baird, S.C.C. OnLine U.S. S.C. 62 (1972).
  37. Rudul Shah v. State of Bihar, 4 S.C.C. 141 (1983).
  38. Shri Bodhisattwa Gautam v. Shubra Chakraborty, 1 S.C.C. 490 (1996).
  39. K.S Puttaswamy v. Union of India, 10 S.C.C. 1 (2017).
  40. Sanjeev Gupta v. Ritu Gupta, S.C.C. Online, (All. 2019).
  41. Meera Emmanuel, Forcible sex- Unnatural or natural, Bar and Bench (Jun. 15, 2019, 5:00 PM), https://barandbench.com/forcible-sex-unnatural-natural-illegal-intrusion-allahabad-high-court/
  42. Independent Thought v. Union of India, 10 S.C.C. 800 (2017).
  43. State of Karnataka v. Krishnappa, 4 S.C.C. 25 (2000).
  44. State of Haryana v. Janak Singh, 9 S.C.C. 431 (2013).
  45. Suchita Srivastava v. UT of Chandigarh, 9 S.C.C 1 (2009).
  46. TNM Staff, UN official says Marital rape is rape, The News Minute (Jun. 24, 2019, 1:00 PM), https://www.thenewsminute.com/article/un-official-says-marital-rape-rape-heres-what-indian-politicians-and-institutions-say-40263
  47. Susan B Anthony, Women empowerment sayings and quotes, Wise old sayings (Jun. 24, 2019, 6:00PM), http://www.wiseoldsayings.com/women-empowerment-quotes/

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