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Rape: Is Marriage a Sanction to Rape

Rape per se is an offence against woman, violating her dignity and self-respect and when it occurs within the four-walls of a matrimonial home, it reduces the woman to the status of an object used merely for sexual gratification.[1] There is an immediate need for a distinct law on marital/spousal rape in India, which should be at par with the accepted international norms on this issue.
Rape within marriage is a concept that agonizes the wife to the very core. The dread of having to face it and still have to silently suffer through it is an unbearable thought that affects the psyche of the women.

This self-enforced silence has a very detrimental effect on the emotional, psychological and mental stability of women. However, this silence is not exactly self-enforced. The lack of laws and abundant social stigmas against the act of marital rape is one of the primary reasons that the evil of marital rape is still hidden behind the sacrosanct of marriage. The woman has been given the right to fight for protection when the violators are outside entities, but when the perpetrator of her bodily integrity is her significant other, who she married with all the pomp and show, such protection is withdrawn by the legislators.

In light of this, the idea that a woman (wife) has to have sex with her husband irrespective of her will, consent, health, etc., is absolutely unacceptable to a civilized society. Therefore there is no justification or applicability of the notion of marital exemption in the current times. It is true that mere criminalization of marital rape in India will not end the problem, but it sure is an important step towards changing women's experience of sexual violence in a marriage. It is high time that the concept of rape is rape, irrespective of the relationship between the victim and the perpetrator is recognized by the law and put strictly to force.

Introduction
The day will come when men will recognize woman as his peer, not only at the fireside, but in councils of the nation. Then, and not until then, will there be the perfect comradeship, the ideal union between the sexes that shall result in the highest development of the race.[2] - Susan B. Anthony

Most countries in the world recognize that rape is rape, and that rape is a crime. So, what's holding India, a burgeoning superpower, back? A careful analysis points to several factors: an outdated IPC dating back to the Victorian era; a rigidly patriarchal society, across India's myriad religions, that suppresses women's voices and agency; and, a culture where marriage and family, in the dated sense of the words, still hold utmost significance as the building blocks of society.

Violence against women depicts power of the men on women. It shows that men are stronger and make the women their property or object for recreation. This has led to various crimes, wrongful acts done against women at a whole. It has led to domination and discrimination against women and violence against them is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.[3]

The Indian Penal Code, 1860, in Section 375 defines rape like this: that a man is said to commit rape when he has sexual intercourse with a woman against her will, without her consent-or where that consent has been obtained under threat, unsound mind, intoxication or under the influence of substances, or via impersonation of her husband. A glaring provision is: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

As Susan Brown miller asserts, The ancient patriarchs who came together to write their early covenants had used the rape of woman to forge their male power- how then could they see rape as a crime of man against woman? Women were wholly owned subsidiaries and not independent beings.[4]

India is the seventh largest country in the world. Its population is over 1.2 billion and is the most-populous democracy in the world. It is a country with a blend of various religions, cultures, languages, customs, usages and much more. The crime rate in India is increasing at an alarming rate. As per the Crime Index for 2015 Mid-year, crime index in India is 46.82[5] and as per the reports of the National Crime Record Bureau, crime against women during the year 2013 was noted to be approximately 52.2.[6]

It has been rightly said that the worth of a country can be judged from the position that it gives to women. Women have never been given importance in India; their position is still not what it should have been. In India women have always been considered inferior to men which have led to India being developed as a country with male chauvinist ideologies. Women in India are subjected to criminal atrocities such as Rape, Domestic Violence, sexual harassment, trafficking and forced prostitution. This is just a small part of a never ending list of crimes against women.

Marriage, also called matrimony or wedlock, is a socially and legally recognized union between spouses that establishes rights and obligations between them, their children, and their in-laws[7]. According to ancient Hindu scriptures no religious rite can be performed with perfection by a man without the participation of his wife. Wife's participation is essential in any religious rite. Wives are thus befittingly called Ardhangani. They are supposed to be given not only important but equal position with men.[8] But with reference to recent times it can be noticed that the position of women is deteriorating.

The issues of sexual and domestic violence within marriage and the family unit, and more specifically, the issue of violence against women, have come to growing international attention from the second half of the 20th century. Still, in many countries, marital rape either remains outside the criminal law, or is illegal but widely tolerated. Laws are rarely being enforced, due to factors ranging from reluctance of authorities to pursue the crime, to lack of public knowledge that sexual intercourse in marriage without consent is illegal.

Marital rape is more widely experienced by women, though not exclusively. Marital rape is often a chronic form of violence for the victim which takes place within abusive relations. It exists in a complex web of state governments, cultural practices, and societal ideologies which combine to influence each distinct instance and situation in varying ways. The reluctance to criminalize and prosecute marital rape has been attributed to traditional views of marriage, interpretations of religious doctrines, ideas about male and female sexuality, and to cultural expectations of subordination of a wife to her husband-views which continue to be common in many parts of the world.

The idea of the sacrosanct institution of marriage portrayed in India is contrary and far from women's perception of reality. Hidden under the iron veil of marriage lies the ugly truth of crimes like marital rape, domestic violence etc. Marital rape is not legally recognized as a crime in India and thus, there is no penalization for the same.

Through this research paper, the researchers make an attempt to denounce the discrimination faced by women with regard to marital rape and the shortcomings of the Indian Judicial System by not conceding marital rape as an offence. The researchers also provide arguments and reasons supporting the need for criminalization of marital rape in India, and further suggest certain legal reforms essential to achieve the desired objectives.

Marital Rape-Meaning

When one mentions the word rape, the tendency is to think of someone who is a stranger, a malicious person. Usually one does not think of rapes in the context of marriage. Women themselves find it difficult to believe that a husband can rape his wife. After all, how can a man be accused of rape if he is availing his conjugal rights. It is indicative that a woman has no right to her own body, and her will is subject to that of her husband.

Though marital rape is the most common and repugnant form of masochism in the Indian society, it is well hidden behind the iron curtain of marriage. While the legal definition varies, marital rape can be defined as any unwanted intercourse or penetration (vaginal, anal, or oral) obtained by force, threat of force, or when the wife is unable to consent. Despite the prevalence of marital rape, this problem has received relatively little attention from social scientists, practitioners, the criminal justice system, and larger society as a whole. The word rape' has been derived from the term rapio, which means to seize.

Rape is therefore, forcible seizure, or the ravishment of a woman without her consent, by force, fear or fraud. It involves coercive, non-consensual sexual intercourse with a woman. Rape can be viewed as an act of violence of the private person of a woman, an outrage by all means. It is the ultimate violation of the self of a woman. The Supreme Court of India has aptly described it as deathless shame and the gravest crime against human dignity.[9]

Rape is not merely a physical assault, but is destructive of the whole persona of the victim. The law did not conceptualize it as an offence against the person of the woman, one that destroys her freedom; rather, it conceived rape as an instrument for protecting a man's property from the sexual aggressions of other men. Therefore the act of rape within marriage was not recognized as an offence as woman was considered the property of the husband, and a man could not be perceived to violate his own property.

Marital rape is particularly complicated because the complex, personal nature of marital relationships makes it hard for the victim to even see herself as a victim, let alone reporting the offending act to the authorities, which is why Marital Rape is one of the highly under-reported violent crimes. Even the women who do consider themselves victims are disinclined to approach the authorities because they are financially dependent upon their husbands, and reporting the matter could very well result in withdrawal of financial support leaving them and their children without food and shelter.

Marital rape refers to the sexual intercourse between a man and a woman, who are legally accepted as husband and wife, where the woman does not give consent for such intercourse. Marriage, as discussed earlier is an unimpeachable bond in which the man and woman vow to live together in happiness as well as in pain by greeting the flaws of each other. Marriage also gives a right to the husband and wife to lawfully consummate their marriage.

Consummation is considered to be a necessary requisite after the marriage has taken place. Marriage is a stable relationship in which a man and a woman are socially permitted to have Children implying the right to sexual relation.[10]

Being a part of the wedlock does not permit the man to forcefully have sex with his wife. The right to have sexual intercourse must be consensual and not an obligation of the wife. The wife should have the liberty to refuse to have sex and cannot be compelled by her husband to do it. Even today the law system in India does not recognize marital rape as a crime. It is a debatable issue on which so far no conclusion has been drawn.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one spouse against the other.[11] To understand the complications of Marital Rape one must first understand the difference between Rape and Marital Rape as both the terms have different meanings and cannot be used interchangeably.

The dictionary meaning of word rape is the ravishing or violation of a woman. The summary of definition of Rape as defined and accepted by FBI is- Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.[12]

According to Morton Hunt, The typical marital rapist is a man who still believes that husbands are supposed to rule their wives. This extends, he feels, to sexual matters: when he wants her, she should be glad, or at least willing; if she isn't, he has the right to force her. But in forcing her he gains far more than a few minutes of sexual pleasure. He humbles her and reasserts, in the most emotionally powerful way possible, that he is the ruler and she is the subject.[13]

As per the Indian Penal Code, 1860, the definition of Rape under section 375, states that sexual intercourse with a woman would be constituted as rape if it is against her will or without her consent. If the consent of the woman is obtained by coercion or causing apprehension of grievous hurt or death, it will also be called rape. If a man fraudulently makes the woman believe that he is her husband and has intercourse with her that is also rape. If a man has sexual intercourse with a woman who is unable to give consent due to unsoundness then it would also constitute rape.

Sexual intercourse with a girl who is under sixteen years of age would also be called as rape even if the girl consented for such intercourse.

Apart from this the definition of rape also comprises of an exception which states that a man having sexual intercourse with his own wife, who is not under the age of fifteen years is not rape.
Section 375, the provision of rape in the Indian Penal Code (IPC), echoes very archaic sentiments, mentioned as its exception clause- Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

There is clear preference of the rights of the husband over his wife against the wife's right to herself.[14] It can be clearly seen that the exception to this section does not acknowledge a wife being raped by her husband, provided that she is above 15 years of age. The Indian Penal Code Simply overlooks an offence as atrocious as marital rape by not having a provision for it.

Marital Rape also known as Spousal Rape or Inmate Partner rape is a rape committed by one spouse against the other.[15] The court in a case said:
Defense counsel rightly argued that IPC does not recognize concept of marital rape. If complainant was a legally wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes.[16]

Marital Exemption - Origin And Rationale

Throughout the history of most societies, it has been acceptable for men to force their wives to have sex against their will. The traditional definition of rape in most countries was sexual intercourse with a female not his wife without her consent.

This provided the husband with an exemption from prosecution for raping their wives-a license to rape. The foundation of this an exemption can be traced back to statements made by Sir Matthew Hale, Chief Justice in 17th Century England. Lord Hale wrote that: the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract'.[17] It is very surprising to note that Lord Hale did not offer any argument, case law or legal basis to support his assertion.

He asserted that, upon marriage, the wife automatically hands over her legal person to the husband and consents to all sexual acts, which cannot be retracted at any later date for no reason whatsoever. He introduced within the marriage, a notion of implied consent' that started at the time of the marriage and continued for the entire course of the marriage, and such consent was deemed irrevocable by Lord Hale. This established that once married, a woman does not have the right to refuse sex with her husband. Due to construction of sex as a woman's duty within a marriage, there is always a presumption of her consent.

A female slave has an admitted right, and is considered under a moral obligation, to refuse her master the last familiarity. Not so the wife. However brutal a tyrant she may unfortunately be chained to… he can claim from her and enforce the lowest degradation of human being, that of being made the instrument of an animal function contrary to her inclinations[18].

As long back as in 1869, John Stuart Mill observed that marital rape is never welcome to women for it represents a surrender of dignity so absolute in nature, that it lowers the stature of the wife beneath that of a slave. The basic premise for this assumption lies in the fiction that the wife is considered to have given her irrevocable consent to sexual intercourse to the husband at the time of the marriage and hence the husband cannot be held guilty of rape, which he may commit upon his wife.

The tenets of the marital rape exemption were based on the notion of irrevocable implied consent'. As per this notion, once a woman is married to a man, there is believed to be implied consent to sexual intercourse, which is irrevocable in nature. The other traditional justifications for the marital exemption were the common law doctrines that a woman was the property of her husband and that the legal existence of the woman was incorporated and consolidated into that of a husband'.[19]

Marital Rape And Laws In India:

Marital rape is a widespread problem for a woman that has existed for centuries throughout the world.[20] Despite this fact, marital rape has been largely overlooked in the rape and domestic violence literatures, this problem has received relatively little attention from social scientists, legal practitioners, the criminal justice system, and the society as a whole but after analyzing the need for reforms in the legal system regarding the penalization of various crimes against women and especially married women, various countries have acknowledged this as a crime with severe penalties. Marital rape is illegal in eighteen American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia.

Though we have advanced in every possible field, marital rape is not considered as an offence in India. Despite amendments, law commissions and new legislations, one of the most humiliating and debilitating acts is not an offence in India. A look at the options a woman has to protect herself in a marriage, tells us that the legislations have been either non-existent or obscure and everything has just depended on the interpretation by Courts.

The final version of section 375 of the Indian Penal Code, which emerged after deliberations in the Select Committee, is a crystallized form of Clause 359 of the Macaulay's Draft Penal Code. Section 375[21], the provision of rape in the Indian Penal Code (IPC), has echoing very archaic sentiments, mentioned as its exception clause- Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.

Section 376 of IPC provides punishment for rape. According to the section, the rapist should be punished with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to 2 years with fine or with both.

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 12 years of age, if she be between 12 to 15 years, an offence is committed, however, less serious, attracting milder punishment. Once, the age crosses 15, there is no legal protection accorded to the wife, in direct contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting form sexual abuse, only those up to the age of 15? Beyond the age of 15, there is no remedy the woman has. The Indian Penal Code was amended in 1983 to make way for the criminalization of spousal rape during the period of judicial separation.[22]

As per the Indian Penal Code, the instances wherein the husband can be criminally prosecuted for an offence of marital rape are as under:

  1. When the wife is between 12 - 15 years of age, offence punishable with imprisonment upto 2 years or fine, or both;[23]
     
  2. When the wife is below 12 years of age, offence punishable with imprisonment of either description for a term which shall not be less than 7 years but which may extend to life or for a term extending up to 10 years and shall also be liable to fine.[24]
     
  3. Rape of a judicially separated wife, offence punishable with imprisonment upto 2 years and fine;[25]
     
  4. Rape of wife of above 15 years in age is not punishable.[26]

In 2005, the Protection of Women from Domestic Violence Act, 2005 was passed which although did not consider marital rape as a crime, did consider it as a form of domestic violence.[27]

Under this Act, if a woman has undergone marital rape, she can go to the court and obtain judicial separation from her husband. This is only a piecemeal legislation and much more needs to be done by the Parliament in regard to marital rape.

Marital rape reflects the perversity of an individual. It is not only the rape of a woman's body but a rape of her love and trust as well. Being subject to sexual violence by her own husband envelopes her in a sense of insecurity and fear. Her human rights are sacrificed at the altar of marriage. The Indian Penal Code has dealt with this form of rape in a very piecemeal manner. Various provisions of the IPC relating to sexuality reinforce not only Victorian morality but also the non-agency of women.[28]

42nd Law Commission Report

The Law Commission of India in its 42nd report put forward the necessity of excluding marital rape from the ambit of Section 375. In their words naturally the prosecutions for this offence are very rare. We think it would be desirable to take this offence altogether out of the ambit of section 375 and not call it rape even in technical sense. The punishment for this offence may also be provided in a separate Section.[29]

Many women's organizations and the National Commission for Women have been demanding the deletion of the exception clause in Section 375 of the Indian Penal Code 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, the Task Force on Women and Children set up by the Woman and Child Department of the Government of India took the view that there should be wider debate on this issue. The mandate of the Task Force was to review all existing legislation and schemes pertaining to women. Of the four recommendations made by the Task Force vis-à-vis rape under the Indian Penal Code, the most significant pertains to the definition of rape.

It took the position that the definition of rape ought to be broadened to include all forms of sexual abuse. As per the recommendation, the Law Commission's proposed definition of sexual assault could be adopted in place of the existing definition of rape in Section 375 IPC as it is wide, comprehensive and acceptable. However, like the Law Commission, the Task Force also stopped short of recommending the inclusion of marital rape in the new definition.

172nd Law Commission Report

Even the 172nd Law Commission[30] which was passed in March 2000 had made the following recommendations for substantial change in the law with regard to rape.
  1. Rape should be replaced by the term sexual assault.
  2. Sexual intercourse as contained in section 375 of IPC should include all Forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
  3. In the light of Sakshi v. Union of India and Others[31] , sexual assault on any part of the body should be construed as rape.
  4. Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
  5. A new offence, namely section 376E with the title unlawful sexual conduct' should be created
  6. Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
  7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
  8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.

Notwithstanding the 172nd Report of the Law Commission of India submitted over nine years ago to the Government of India urging that Parliament should replace the present definition of rape under Section 376 IPC with a broader definition of sexual assault, which is both age and gender neutral, nothing has been done till date.

Constitution Of India Viz-A-Viz Marital Exemption To Rape

The Constitution of a country is the text that reflects the soul of the nation. The Indian Constitution organizes and controls power, ensures human rights, balances the competing claims of social and individual interests, mirrors the cultures and experiences of the country and operates as a vehicle for national progress and unity.[32]

As per the Indian constitution, every law that is passed in the country has to be in conformation with the principles and ideas enshrined in the Constitution of India. Any law that fails to meet this standard is considered ultra vires and is liable to be struck down by the Courts and declared unconstitutional.

Judicial Stand
Tracing the history of judicial decisions on infliction of serious injury by the husband on the wife the court in Queen Empress vs. Haree Mythee[33], observed that in case of married women, the law of rape does not apply between husband and wife after the age of 15; even if the wife is over the age of 15, the husband has no right to disregard her physical safety, for instance, if the circumstances be such that intercourse is likely to cause death.

In the present case, the husband was convicted under section 338, Indian Penal Code, for rupturing the vagina of his eleven-year old wife, causing hemorrhage leading to her death. In Emperor vs. Shahu Mehrab[34], the husband was convicted under section 304A Indian Penal Code for causing death of his child-wife by rash or negligent act of sexual intercourse with her.

In Saretha vs. T. Venkata Subbaih[35], the Andhra Pradesh High Court held:
There can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of a person.

The Supreme Court in the State of Maharashtra v. MAdhukar Narayan Mandikar[36], has referred to the right to privacy over one's body. In this case it was decided that a prostitute had the right to refuse sexual intercourse. What is sad to know is that all stranger rapes have been criminalized and all females, other than wives, have been given the right of privacy over their bodies thereby envisaging the right to withhold consent and refuse sexual intercourse.

In Sree Kumar vs. Pearly Karun[37], the Kerala High Court observed that because the wife was not living separately from her husband under a decree of separation or under any custom or usage, even if she is subject to sexual intercourse by her husband against her will and without her consent, offence under Section 376A, IPC will not be attracted. In this case, there was a ongoing dispute on divorce between the parties.

Thereafter, a settlement was reached between the husband and wife and parties agreed to continue to reside together. The wife stayed with the husband for two days during which she alleged that she was subject to sexual intercourse by her husband against her will and consent. Hence the husband was held not guilty of raping his wife though he was de facto guilty of having done so.

The judiciary seems to have completely relegated to its convenience the idea that rape within marriage is not possible or that the stigma of rape of a woman can be salvaged by getting her married to the rapist.

The trouble is that it has been accepted that a marital relationship is practically sacrosanct. Rather than, making the wife worships the husband's every whim, especially sexual, it is supposed to thrive, mutual respect and trust. It is much more traumatic being a victim of rape by someone known, a family member, and worse to have to cohabit with him. How can the law ignore such a huge violation of a fundamental right of freedom of any married woman, the right to her body, to protect her from any abuse?

Conclusion
It is argued that marital rape should be criminalized in India, as this can be achieved only It is argued that marital rape should be criminalized in India, as this can be achieved by applying an individual rights approach to violence against women. Indian women's organizations have succeeded to achieve public awareness and to pass legislation on domestic violence, but marital rape has not been fully criminalized by abolishing the distinction between marital rape and stranger rape. But marital rape will neither be criminalized nor punished, until legislators and the society acknowledge women's individual rights within the marriage.

Ideas about women's sexuality, and therefore ideas about non-marital and marital rape in Indian society, originate in concept of gender, shame and family honour, rather than women's rights and individual autonomy. If the reformers see rape as a crime against a woman and her person and bodily integrity and humanity, then marital rape and its punishment would be a legal possibility.

To bring a change in the existing policy, we may use an individual rights rhetorical approach in working towards criminalizing marital rape in India, because marital rape will not bea State concern until the society and legislators understand women to have individual rights within marriage. In western countries, activists have operated within the individual rights framework in seeking to challenge cultural assumptions about marital relationships.

The individual rights paradigm may have a similar role in India, where cultural assumptions prevent communities and even women's organizations from talking about the evil of marital rape. As aforesaid, marital rape is not fully criminalized in India. It is clearly a serious form of violence against women and worthy of public and State attention. The studies till date indicate that women who are raped by their husbands are more likely to experience multiple assaults and often suffer long -term physical and emotional consequences.

In this context, marital rape may be even more traumatic than rape by a stranger because a wife lives with her assailant and she may live in constant terror of another assault whether she is awake or asleep.

Given the serious effects, there is a clearly an urgent need for criminalization of the offence of marital rape. India is moving in the direction of positive legal change for women in general, but further steps are necessary to ensure both legal and social change, which would culminate in criminalizing marital rape and changing the underlying cultural assumptions about women in marriage.

Although most Indian women feel protected under the Protection of Women from Domestic Violence Act, there are many loopholes in it, as the Act does not openly speak against marital rape. However, the enactment of a specific legislation against domestic violence has opened the door for a legislation criminalizing marital rape because it would signal a shift in the State's approach of non-intervention in family life.

Can a state enter in the purview of the house?
The answer to this question is yes. It has already done so, in the cases of domestic violence, cruelty and dowry demands, then why leave the most beastly and frightful crime outside the ambit of the state and laws.

Why must the area of marital rape remain untouched?
The woman has and still continues to be victimized by man and society. There is a need to acknowledge her as a human being, away from the ancient notion of her being a mere chattel, and give her respect and the dignity she deserves. A prostitute has a right to say no if she is not ready to have sexual intercourse with a person or if specifically said a stranger, but why this right is not given to a married woman.

End-Notes:
  1. Marital Rape: Current Legal Framework in India and the Need for Change.
  2. https://www.passiton.com/inspirational-quotes/3161-the-day-will-come-when-man-will-recognize.
  3. The United Nations Declaration on the Elimination of Violence against Women, General Assemble Resolution, December, 1993.
  4. Susan Brown miller, Against Our Will: Men, Women and Rape (Penguin, 1975) p.18.
  5. Crime Index for Country 2015 Mid Year, available at : http://www.numbeo.com/crime/rankings_by_country.jsp (Visited on July 11, 2015)
  6. Rate of crime against women during 2013, available at: http://ncrb.gov.in/CD-CII2013/CII%202013%20Map/82%20Rate%20of%20Crime%20against%20Women%20-%202013%20-%20Map.pdf (Visited on July 11, 2015).
  7. Haviland, William A.; Prins, Harald E. L.; McBride, Bunny; Walrath, Dana (2011).Cultural Anthropology: The Human Challenge (13th ed.). Cengage Learning.
  8. Dr. (Ms.) Rekha Singh, Status of Women in Indian Society, available at: : https://www.bu.edu/wcp/Papers/Huma/HumaSing.html (Visited on July 11, 2015).
  9. Bodhisattwa Gautam v. Subhra Chakraborty AIR 1996 SC 922.
  10. Meaning of Indian marriage, available at: http://vapsoft.org/meaning-of-indian-marriage/ (Visited on July 13, 2015).
  11. Marital Rape, available at: http://rapeinfo.wordpress.com/2008/05/25/marital-rape/ (Visited on July 11, 2015).
  12. Definition of rape, available at: https://www.fbi.gov/about-us/cjis/ucr/recent-program-%20updates/new-rape-definition-frequently-asked-questions , (visited on July 13, 2015).
  13. Morton Hunt, Legal Rape, Family Circle (January 9, 1979), p. 38.
  14. Dipa Dube, License to Rape: The Indian Viewpoint, Indian Institute of Technology - Rajiv Gandhi School of Intellectual Property Law, February 14, 2006
  15. Marital Rape, available at: http://rapeinfo.wordpress.com/2008/05/25/marital-rape/ , (Visited on July 11, 2015).
  16. The Life and Times of an Indian Homemaker, available at : https://indianhomemaker.wordpress.com/2012/12/04/why-is-forcible-sex-or-lack-of-consent-not-rape/ , (Visited on July 25, 2015).
  17. Hale, Matthew, 1 History of the Pleas of the Crown, p. 629. (1736, London Professional Books, 1972).
  18. Mill, J.S., The Subjection of Womened. S.M. Okin, Indianapolis, Hacket, 1988, p. 33.
  19. To Have and to Hold- The Marital Rape Exemption and the Fourteenth Amendment, 99 HARV. L. REV. 1255, 1256 (1986) p. 442.
  20. Russell, 1990.
  21. The section 375 of the Indian Penal Code (45 of 1860) reads: -A man is said to commit rape who, except in
    the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the
    six following descriptions: -
    First. - Against her will.
    Secondly.-without her consent.
    Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
    Fourthly.-with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
    Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
    Sixthly.- With or without her consent, when she is under sixteen years of age.
    Explanation
    Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
    Exception. -Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
  22. Indian Penal Code (45 of 1860), Section 376A. Intercourse by a man with his wife during separation.-Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine
  23. Indian Penal Code (45 of 1860), Section 376(1).
  24. Ibid
  25. Indian Penal Code (45 of 1860), Section 376A.
  26. Indian Penal Code (45 of 1860), Exception to Section 375.
  27. The Protection of Women from Domestic Violence Act, 2005, Section 3 Explanation 1 (ii).
  28. Kumari, Ved, Gender Analysis of the Indian Penal Code in Engendering Law: Essays in the honour of Lotika Sarkar ( Amita Dhanda & Archana Parashar eds.) , p. 143.
  29. http://www.siu.edu.in/Research/pdf/Shaila_Daware.pdf.
  30. 172nd report of Law Commission of India on Review of Rape Laws, March 2000, para 3.1.2.1.
  31. 2004 (5) SCC 518.
  32. Roy, Sudhanshu & Jain, Iti, Criminalizing Marital Rape in India: A Constitutional Perspective, Criminal Law Journal, Apr 2008, p. 81-92.
  33. [(1891) ILR 18 Cal. 49].
  34. AIR 1917 Sind 42].
  35. AIR 1983 AP 356].
  36. AIR 1991 SC 207.
  37. http://indiankanoon.org/doc/486164/
Written By: Falguni Agrawal, Affiliation: B.B.A. LL.B Student 2nd Year, New Law College, Bharati Vidyapeeth, Pune E-mail Address: [email protected], Phone no.: 7049930716

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