Marital Rape means any unwanted sexual act by a spouse that is committed
without the other person's consent, such illegal activity are done by force,
threat by force, it is also known as spouse rape .the marital defense to rape
was first time justified in the case r vs r
 ukhl12 Because law of most
of the countries is based upon the one statement i.e.; a husband cannot rape
by sir Mathew.
Most of the time it is considered as civil offence even
in India marital rape is not criminalized, section 375 of IPC, has enchoing very
archaic sentiments mentioned as its exception clause (2) – a sexual intercourse
by man with his own wife who crossed the fifteen year of age, is not a rape, now
SC changes the age from 15 to 18 in case independent thought vs union of
Yes under section 376 punishment is provided but what about those who cross the
age fifteen? even domestic violence act 2005 has also be a dissatisfactory
ground, it only provide civil remedy and section 122 of Indian evidence act also
provide a ground that shows a marital rape is never be considered as offence
because it prevent communication during marriage from being disclosed in court
except when one married partner is being persecuted for an offence against the
So we can say that in India marital rape is exist as de-facto but not de-jure
while in other countries marital rape has been criminalized, so for this reason
recommendation 172nd law commission report should be singed because it provide
various relative aspect i.e.; exception 2 of the section 375 of IPC should be
It effect article 14. it is not a reasonable classification and violate the
protection granted under article 14,
.it effect the article 21 right to live with human dignity
so the punishment of marital rape should be the same as the punishment for rape
under section 376 of IPC, and law should be a hard and strict so that no women
suffer daily rape.
The word rape is derived from the Latin term Repio
which mean to seize
rape literally means a forcible seizure. It signifies in common terminology, as
the ravishment of a women without or consent, by force, fear, fraud, against his
Rape is violation with violence of privacy of women
According to the
section 375 of Indian penal code -A man is said to commit rape
- Penetrates his penis, to any extent ,into Virginia , mouth, urethra or
anus of a woman or makes her to do so with him or any other person; or
- Inserts, to any extant ,any object or a part of the body, not being the
penis, into the vagina, the urethra or anus of a woman or makes her to do so
with him or any other person: or
- Manipulates any part of the body of a women so as to cause penetration
into the vagina, urethra ,a nubs or any part of the body of woman or make
her to do so with him or any other person: or
- Applies his mouth to the vagina, anus , urethra no a woman or makes her
to do so with him or any other person
A medical procedure or intervention shall not constitute rape.
Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen year of age , is not rape.
Marital Rape means any unwanted sexual act by a spouse that is committed without
the other person's consent such illegal activities are done using force, threat
of force , intimidation or when a person is unable to consent . the sexual act
include intercourse ,anal, oral sex ,forced sexual behavior with other
individual and other sexual activities that are considered by the victim as
degrading, humiliating, painful & unwanted, also known as spousal rape.
Marital Rape, Spousal Rape, Partner Rape happens between two persons who are
According to incest and abuse national network sexual act committed without a
person's consent & against person's will when the perpetrator is the individual's
current partner ( married or not ) previous partner, cohabiter.
Types Of Marital Rape:
- Battering Rape:
Battering rape occur when physical and sexual violence occur
together. The rape may occur after physical violence as an attempt to make up.
- Force only Rape:
this type of rape happens when physical violence is not
presented. As with all rape, this type of spousal rape control over another
- Obsessive / sadistic Rape:
this type of rape involved torture or perverse
sexual acts. This type of marital rape tends to be very violent and result
While it has been illegal at all time for a man to force sex upon a woman other
than his wife a husband could force sex upon his wife without violated the law
unit very recently. The justification for this marital rape.
The British common law view that the contract of marriage include the husband's
right to sex the wife having given consent for all time by entering the
contract. The traditional view of wives as the property of their husband with
which they could do as they pleased under common law the public interest in
promoting privacy & harmony in marital relationship which discouraged the state
from interfering in relationship.
In 1857, Case Massachusetts
was the first in U.S to recognize the contract
justification for the marital defense to rape. The right
of a husband to sex
with his wife also provide husband with ground of divorce if his wife refuse
sex. This defense became part of the rape law in the every state.
Weishaupt vs Commonwealth
as SC of Virginia has noted it is hard to imagine
how charging a husband with the violent crime of rape can be more disruption
then violent act itself.
The definition a husband could not rape his wife the view that husband cannot be
charged with the rape of his wife was discarded by sir Mathew hale4 (1609-1676)
in history of the pleas of the crown publish in 1736.
Not surprisingly, thus married women were never the subject of rape law. Law
toward an absolute immunity on the husband in respect of his wife, solely on the
basis of the marital relation.
Section 375, the provision of rape in Indian penal code 1860 has very archaic
sentiments mentioned as its exception clause- 'sexual intercourse by man with
his own wife , the wife not being under,15 year of the age, is not rape' but in
case independent thought vs union of india extend the age from 15 to 18 years.
Sec 376 of IPC provide punishment for rape, according to this section the rapist
should be punished with imprisonment of either description for a term which
shall not be less than 7 year but which may extend to 10 years and shall also be
liable to fine unless the women raped is his own wife and is not under 12 year
of age, in which the case, he shall be punished with imprisonment of either
description for a term which may extend to 2 year with fine or both.
This section deals with marital bond stand only if the wife is less than 12 year
of the age if once she crossed the 16, there is no legal protector accorded to
the wife in direct contravention of human right. There is no remedy of women
beyond the age 16.the much awaited domestic violence act 2005 also a
disappointment. It has provide civil remedy to what the provision of cruelty
already gave criminal remedy, while keeping the status of the matter of marital
rape. section 3 of dva , among other things in the definition of domestic
violence has included any act causing harm, injury, anything endangering health,
life though mental , physical and sexual.
Section 122 of Indian evidence act prevent communication during marriage from
being disclosed in court except when one married partner is being persecuted for
an offence against the other, the evidence is inadmissible although relevant
unless it is prosecuted for terry, or some related physical or mental abuses
under the provision of cruelty. Selling out to prove the offence of marital rape
in court, combining the provision of dva and ipc will be nearly impossible
Marital rape is considered illegal in so many country, Australia, America, Canada, Israel France, Sweden, Denmark, Norway,
Soviet Union, Poland.
India is a state party & has ratified the convention on the elimination of all
form of discrimination against women (CEDAW) article 1 of CEDAW define
discrimination against women as any distinction
, exclusion or restriction
made on the basis of sex , irrespective of their marital status.
And sec 375 exception 2 is therefore, inconsistence with article 1of CEDAW.
Article 2(a) of CEDAW categorically encompasses marital rape as violence against
Austria provide punishment up to 15 year imprisonment
Brazil has criminal code for marital rape
Canada first criminalized first in 1983
Vietnam criminalized 2(1) e of law of domestic violence prevention and control
In California, there are separate criminal offence for rape Art(261))and for
spousal rape art (262)
R VS. R  UKHL 12
The case come before Mr. justice owen and a jury at leicester crown court in
July 1990.the judge reject the submission on the behalf of the defendant that he
could not be found guilty of rape due to the marital rape,
R appealed to the conviction for rape to the court of apple (criminal division).
An unusually large penal of five judge – the lord chief lord lane, the
president of the family division stephan brown, lord justice Watking Neil &
Lord Lane delivered the judgment of the court in march 1991, dismissing the
appeal he outline three possible outcome to the legal issue:
- First a literal approach, that it was always impossible for husband to
rape his wife.
- Second a compromise approach, that rape was only possible in case where
a wife presumed consent was deemed to be negated, with an expanding and open
ended list of possible exceptions.
He was not in favor of either of those outcome and instead he adopted the
third solution, one of more radical reform, abolishing the legal fiction of a
marital rape exemption.
R appealed again to the house of lord. Legal argument were heard by five judge
bench in July 1991, Lord Kinkel, Lord Brandon Of Oakbrook, Lord Griffith, Lord
Ackner & Lord Lowry. In October 1991, Lord Keith Of Kinkel delivered the leading
speech with which the other four lord are agreed. He stated that the
contravention performed in the earlier cases in order to avoid applied marital
right exemption were indicated of the absurdity of the rule.
He referred to case under Scottish law – in which the HC judiciary held that
there was no marital rape exemption in Scottish law, even if the married couple
was cohabited ; in the case, Lord Justio Geners, Lord Emslie questioned if marital rape
exemption was ever part of Scottish law but even if it was concluded that there
was no good reason for it to continue.
The house of lord also considered whether the word unlawful in the definition
of unlawful rape in the sexual offence. Amendment act 1976 include marital rape.
as all rape was consider illegal under the act. with regard to the marital rape
exemption lord keith agreed with the court of appeal that the marital rape
exemption was common law fiction and ruled that in modern time the supposed
marital exemption in the rape forms no part of the law of England. Lord Brandon
Of Lord Griffing, Lord Ackner & Lord Lowry all unanimously agreed with lord
Keith's ratio decidendi as such R's appeal was dismissed and his conviction
upheld. R's appeal was accordingly dismissed & he was convicted of the rape of
This was reviewed by Europe court, it amounted to a retrospective change in the
criminal law. the judgment of R vs. R was supported by the law commission and
was later confirmed in statute law by the amendment to the sexual offence act
in the criminal justice and public order act 1994.
Situation in India
In India marital rape exist de-facto not de-jure. While in other country either
the legislature has criminalized marital rape or the judiciary have played an
active role in recognizing it as an offence in India however he judiciary seems
to be operating at cross purpose; Shri Bodhisattwa Gautam V Subhra
5 the SC said that rape is a crime against basic human right and a
violation of the victim most cherished of fundamental right to life enshrined in
article 21 of the constitution.
Yet it negate this very pronouncement by not recognizing marital rape. Through
there have been some advance in Indian legislature in relation to domestic
violence, it has mainly been confined to physical rather than sexual abuse.
Woman who experience and wishes to challenge sexual violence for their husband
are currently denied state protection as the Indian penal code section 375 has a
general marital rape exemption.
172nd Law Commission Report
The 172nd law commission report had made the following recommendations for
substantial change in the law with regard to rape:
- Rape should be replaced by the term sexual assault
- in the light of sakshi vs union of india and others 2004 (5) scc5186 Sexual
assault on any part of the body7 should be constructed as rape
- A new offence namely sec376E with the title unlawful sexual conduct
should be created
- Sec 509 of the IPC was also sought to be amended
- explanation of the 2 of the sec 375 of IPC should be deleted.
The judicial interpretation has expanded the scope of article 21 of the
constitution of India by leaps and bound the right to live with human dignity of
woman and to that effect it is submitted that exception provide under section
375 of IPC 1860 is violated article 21 of the constitution.
of the constitution guarantees the fundamental right that 'the state
shall not deny to
any person equality before law and equal protection of law with in the territory
of India' but the exception under section 375 of IPC 1860, discriminate with a
wife when it comes to protection from rape. Thus it is submitted, that to this
effect, exception provide under section 375 of IPC 1860 is not reasonable
classification and thus violate the protection guaranteed under article 14 of
Through protection of the dignity of the women is the fundamental duty but, it
seems that domestic violence and marital rape do not come under the definition
The united nation convention on the elimination of all form of discrimination
against woman (CEDAW) of which India is a signatory has viewed against violate
the principle of equality of right violate the principles of equality of right
and respect human dignity, further the commission on human right at the fifty
first session in its resolution no 1995/85 of 8/3/1995 entitled the elimination
of violence against rape should be criminalize.
The law prevent a girl below 18 years from marriage but on the other hand, it
legalized non – consexual, sexual intercourse with a wife who is just 18 year of
Another paradox is that according to the sec 367(D) IPC 1860, if there is a non
consexual intercourse with a wife, then the punishment may either be fine or an
imprisonment for maximum term 2 year or both which is quite less in comparison
to the punishment provided for rape outside the marriage.
- The punishment for the marital rape should be same as the one prescribe
for rape under section 376 of IPC
- The fact that parties are married should not make the since lighter
- It should not be a defense to the charge that the wife did not fight
back and resist forcefully or screamed and shoulder
- The wife should have an option of getting decree of divorce if the
charge of marital rape is proved again her husband
- Corresponding change in the matrimonial law should be made.
It is conclude that changing the law on sexual offence is a formidable and
sensitive task & more so, in a country like India where there is a
contemporaneous presence of a varied and differentiated system of personal and
religious laws that might came into conflict with a new amendment in the
statutory criminal law, further though there is need for substantial change in
the law of sexual offence such as making them gender , neutral and eliminating
the inequality a radical overriding of the structure of sexual offence is not
The immediate need is criminalizing marital rape under the IPC. But, mere
declaration of a conduct as an offence is not enough. Sometime more is required
to be done the judiciary and police. There is also a need to educate the masses
about this crime, as a real objective of criminalizing marital rape. Can only be
achieve if the society acknowledge& challenge the prevailing myth that rape by
one's spouse is inconsistence. so, there should be hard punishment, law for this
crime because there should be maintenance of equality and right to freedom i.e.
human right and no one have right even her husband to heart their dignity.
- 31sse 2nd847va1984
- History of pleas 1736
- 2004(5) Scc518