The Social And Legal Paradox Relating to Marital Rape in India: Addressing Structural

Inequalities

Shalu Nigam
Recently when the Bill to criminalize marital rape was introduced in India, it was turned down
by the Parliament. According to some of the Parliamentarians, marriage is a sacred institution
and touching it will leads to breakdown of marriages. They are of the view that India should be
proud of its culture because `the nation has low divorce rates’. Statements have been issued
against criminalizing marital rape without acknowledging the fact that most marriages in India
survive because women silently endure violence and abuse within such relationships. The culture
of `silence’, `tolerance’, `adjustment’, `compromise’ among women is propagated to `save and
respect the `honour’, the `pride’ and the `values’ of the Indian family overlooking the fact that
incest, violence, suicides, murders are the price women pay. On the other hand there is a men’s
group which is lobbying fiercely to highlight the fact the law against domestic violence has been
misused by women and therefore should be diluted. They further propagated that the enactment
of penal law against marital rape will also be abused by women. According to such arguments, a
woman, who is not docile, subservient or compliant and complains about the continuous abuse
within the conjugal relationship is an anti-family warrior breaking the sacred bonds while
converting bedroom to a battlefield. Both the groups ignore the reality that most cases of
emotional violence, sexual abuse, physical assault, mental trauma, all takes place within this
`sanctified’ territory because women are powerless and vulnerable and have been socialized to
be pliant, obedient and subservient. This essay attempts to unpack the everyday possibility as
well as reality of the lives of women in the light of backlash on women’s rights and looks at the
debate on criminalizing marital rape from the gender perspective. It concludes that this concept
needs to be examined in the larger perspective of violence against women and should be dealt
accordingly.

Debates Regarding Criminalization of Marital Rape

Criminalizing marital rape has been a long standing demand made by the women’s movement in
India. Recommendations of penalizing rape within marriages were also made by the Justice
Verma Committee Report formulated after Nirbhaya’s gang rape case. This Report reiterates that
marital rape stems from the outdated notion of marriage that regards wives as property of

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husbands. It rules out the common law of coverture1, according to which a wife has been deemed
to be consented at the time of marriage to have intercourse with her husband at his whims and
this consent could not be revoked anytime after the marriage. The Committee suggested that
existence of relationship is not a valid defense against the sexual violation.

However, this recommendation was ignored and rejected by the then government which
selectively and arbitrarily picked up a few suggestions rather than holistically adopting the same
to tackle rape cases. This piecemeal fragmented adoption of the multi-sectoral approach denies
comprehensive recourse to the survivors of sexual violence. In fact, since independence,
successive governments have decided against touching the institution of marriage. Based on the
irrational logic that criminalizing marital rape `will destroy the institution of family, will attack
its sanctity’ and `will be used as a weapon by women to torture the male members’, the state has
been violating the constitutional rights to dignified life of married women.

The Criminal Law Amendment Act 2013 does not recognize marital rape as a crime unless a
wife below 16 years of age is sexually assaulted or rape is committed during the period of
separation between the spouses. The state took the stand that the Protection of Women Against
Domestic Violence 2005 already provide remedy besides the provisions under criminal law.
Though recently, under the pressure from the men’s group, steps are being taken to dilute the
already existent criminal law provision under the Section 498 A of the Indian Penal Code which
penalize cruelty to married women. Nevertheless, this approach fails to see the fact that none of
the personal laws, the criminal or the civil law empowers a wife to seek criminal remedy against
husband who sexually assaults her repeatedly over a prolonged period.

In fact, recently while the issue of criminalizing marital rape was discussed in Rajya Sabha, the
India’s Minister of state for Home Affairs, Haribhai Parathibhai Chaudhary, stated that the
marriage is a sacrosanct institution. He argued that `the concept of marital rape, as understood
internationally, is not suitable in the Indian context, due to illiteracy, poverty, social customs and
values, religious beliefs and the fact that Indian society treats marriage as a sacrament’2. The
Minister, like many others, upholds the notion that a wife by the virtue of marriage is duty bound
to submit silently to sexual whims and desire of her husband and therefore she must willingly
subject her body to being ravaged without complain. According to this philosophy, men are
officially licensed to rape their wives with impunity. Such beliefs do not see marital rape as a
widespread social problem. Rather, this view exploits social customs and religious beliefs as a
shield to endorse retrogressive ideologies. It sanctions and legitimizes sexual abuse while
censuring poor and illiterate for sexual violation while overlooking the fact that crimes against
women are the misdeeds that occur in many upper and middle class households too.

Even earlier, a Standing Committee on Home Affairs in 20123, on these conventional bases
dismissed the recommendation for criminalizing marital rape. The committee argued that “In
India, for ages, the family system has evolved and it is moving forward. Family is able to resolve
the problems and there is also a provision under the law for cruelty against women”. The
misogynistic view holds that women have ways of approaching the courts and it is not necessary
to charge a man with rape. A report by the Law commission4 also opined that criminalizing
marital rape would amount to “excessive interference with the marital relationship.” These
noxious assumptions presume that marriage implies lifelong blanket consent to sexual
intercourse. This idea of not enacting law against marital rape ignores the reality that the role of
the state in a democratic, capitalistic and globalized society is to protect the rights of wives as
women and citizens rather than to safeguard the marital institution.

Ideological and Legal Incoherency

The hegemonic ideas of not touching the marital institution are based on those conveyed by the
Manusmriti besides these amplify the principles laid down during the Victorian era. Rather,
denying sex, according to traditional religious beliefs and personal law codes, goes against the
paradigm of the duties of an `ideal wife’. This logic fails to recognize the fact that marital rape is
an extreme form of sexual violence. It is a violation of the trust and sanctity in a relationship
besides it also overlooks fundamental principle of women’s bodily integrity. This rationality fails
to address the structural inequalities inherent in the system and indoctrinate the acceptability of
sexual violence against women as `normal’.

Though cruelty in the marriage is recognized as a ground for divorce5 by the Hindu Marriage
Act6 and other personal laws, however, the sexual torture within marriage is not recognized as a

Electronic copy available at: https://ssrn.com/abstract=2613447

reason strong enough to treat it as a crime7. Legislators opine that seeking divorce from a
sexually abusive man is a more comfortable option rather than penalizing him. Here, gender
dimensions of marital violence are being overlooked and this position fails to recognize the fact
that the rape within marriage implies patriarchal assertion of male power. It implies coercive
demand for sex. This principle ignores the fact that letting go off a violent person and allowing
him to marry another woman will in no way alter his violent behavior, his aggressive conduct or
his sadistic attitude. Also, not punishing the crime will not deter the criminal behavior.

Controversial Arguments to Deny Women of their Autonomy and Bodily Integrity

Two sets of arguments are being proposed to deny wives their right to protection against sexual
assaults within the marital tie. One set holds that due to the conditions of `poverty, illiteracy,
religious beliefs and social customs’ the `Indian situations are not suitable’ to adopt marital rape
laws as applicable elsewhere. Second line of thought, which is in direct contradiction with the
first, opines that women in India are misusing and abusing the dowry and the domestic violence
laws, thus trivializing the judicial process. These two positions are inherently contradictory. The
first is based on the presumption that majority of men and women are illiterate and poor trapped
by their orthodox religious and social beliefs and are too ignorant to understand the intricacies of
sexual violence within marriage. This point is in direct negation of the second line of thought
which assumes that women in India are too smart to understand the complexity and technicalities
of law, and are therefore frivolously misusing the laws to `implicate their family members in
order to take revenge’.

Also, both positions expect women to be docile, submissive, `tolerant’, `adjusting’ and passive
and assume that wives in no situation should complain against their abusive husbands. In case,
they do so, they are demonized and are not considered as `good wives’. As per these arguments,
the imaginary of an `ideal wife’ is drawn as per conventional norms where women as wives are
considered to be good only when they fulfill domestic duties, perform sexual obligations without
complain, and sacrifice their individuality and identity for the sake of family. This social
construct on which marital relationship is based is authoritative, in-egalitarian and autocratic. It
is based on the concept of male domination and women’s subjugation. The philosophy denies
married women their right to lead a life free from violence.

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The discourse relating to denial of criminalizing marital rape therefore is fragmented, conflicting
and contradictory. Several questions emerge in case one examines these opinions. Are Indian
women poor and illiterate and therefore incapable to understand the complex phenomenon of
marital rape or are they smart enough to use law as `a tool or a weapon to take revenge from
their spouses’? Are all Indian women financially, educationally and economically independent
besides being legally literate enough to manipulate the complex technicalities of law to take
advantage of it? Or are women, in general, guided by the religious and conventional beliefs
relating to marriage that they do not speak against any kind of abuse within marriage? Are poor
men who cannot read or write always unkind and insensitive to women or do the poor women
lack the ability to recognize violation of her physical rights? Can the levels of education,
prevalence of poverty, existence of rigid social customs or religious beliefs are the reasons
enough to justify non consensual sex as consent to allow marital rape? Why do women file false
cases against their husbands? In case it is for revenge, why women are seeking vengeance against
their immediate family members? Isn’t marriage as an intimate relation based on trust and
respect? Are all women vindictive? What is the purpose of seeking revenge and what do they
gain after filing
`false’ cases, when in India we do not have law that divides marital property equally between the
spouses after divorce as happens elsewhere? Is filing a case or registering a FIR in a police
station an easy process? Is the justice seeking mechanism so quick, easy and cheap in India that
many women are rushing to get their case registered under the law? Do we as citizens doubt our
legal and judicial system that they easily favour women and therefore put all men behind the
bars when police, judiciary, lawyers, all are male dominated fields? Are there enough social
support mechanisms available here which aid wives to walk out easily of marital ties? Is the
epithet that only poor men commit violence against their wives is true? Are rich or educated men
more sensitive to the issue of violence and do not indulge in it? Can a huge bank balance hide
the fact that non consensual sex involves cruelty? The act of rape itself is destructive, than how
come banning the laws against such heinous act will breakdown the marriage? How can a
civilized society justify repeated continuous rape of women without giving them any opportunity
to raise their concerns?

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The answers to the above questions are embedded in the hierarchical social structure which
discriminate between men and women and which see `women’ as a homogenous entity. The
questions evolves because of complex intersect between law, society and culture that refuses to
acknowledge women as equal citizens with rights. The manner in which patriarchy operates to
rule the religious, legal, political and social institutions including marriage needs a deeper
understanding to comprehend the nature of violence within the intimate relation of marriage.
Family as a patriarchal institution often reifies inequalities within marriage. Embedding
such repressive marital relations within the larger oppressive social patriarchal structure has
never helped to reduce cases of crime against women within families.

Are Wives Lesser Citizens?

The Constitution of India has granted the right to equality, liberty and dignity to all of its
citizens, however, when it comes to actual implementation of law, this paradigm is hardly
revoked. The legal vocabulary is a full of archaic and draconian concepts like `restitution of
conjugal rights’ – a concept that legally sanctions rape within marriage. The court, according to
this concept is empowered to order a spouse to submit to the conjugal act. This provision is read
as consent of the partners within marriage. Its language has been used to humiliate and torture
women within the domestic arena. Further, when it comes to implementation of this clause, the
courts in India maintain a conflicting stance whenever the rights of wives are being invoked and
often end up giving confusing decisions about rights of spouses within marriage. For instance, in
the famous case of Harvinder Kaur v Harmender Singh8 while commenting to the applicability of
right to equality under the Article 14 and the right to life under Article 21 of the Indian
constitution within a family, the court upheld that, “introduction of Constitutional law in the
home is most inappropriate. It is like introducing bull in China shop. It will be a ruthless
destroyer of the marriage institution and all that it stands for. In the privacy of the home and
married life, neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at
once most intimate and delicate, the introduction of cold principles of Constitutional Law will
have effect on weakening of marriage bond”. The judgment therefore argues against the
application of law behind the closed doors overlooking the fact that the Section 9 of the Hindu
Marriage Act is already invading the marital privacy while adversely affecting the marital bond.
Though this provision was later challenged in the case of Sareetha v T Venkata Subbaih9 yet

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situation has not altered10. Here traditional notions conflict with the right based laws thus
resulting in inconsistent opinions. Analysis of other judgments also reveals that wives are often
treated as lesser citizens by the law11. The reason for this discrimination lies in the patriarchal
approach of judiciary while interpreting the framework of rights and responsibilities within a
family.

State’s Obligation is to Promote Rights of Women Citizens Rather than Protecting the
Institution of Marriage
The role of the state in a democratic egalitarian society is to protect and promote the rights of its
citizens regardless of their sex or social status. The International instruments, the national laws as
well as the constitutional laws bind the state to promote the rights of women as citizens
regardless of the fact that they are married or not. Marital rape exemptions are unconstitutional.
Yet, the state is evading its obligations to promote rights of women citizens on the flimsy ground
of `saving the institution of marriage’ for decades. A woman as a citizen is legally under no
obligation to pay the price through risking her health or life to save her family. The non-
interventionist approach followed by the state in the marital rape related issues perpetuates biases
and discrimination against married women. The legislature as well as the judiciary, entrusted
with the duty to protect the fundamental rights is dominated by men. Guided by the patriarchal
ideology, they are blatantly violating the basic constitutional norms. The fundamental rights
guaranteed by the constitution are not strictly scrutinized neither these are correctly applied.
Also, the state has failed to recognize the fact that the purpose of enacting a law is not only to
convict criminals but also to serve as a deterrent. It is an educational tool to determine moral and
social wrong. The law establishes as to what constitute as socially acceptable behavior.

The Shaky Patriarchal Foundations of Marriage

Engels propounded that marriage is a man made institution established to secure power as well
as ownership of property12. Russell13 while elaborating on Victorian notions of morality and
marriage observed that wife is seen as a property first of her father and than of her husband and
therefore after marriage wife is treated as an inseparable possession of her husband. Under the
conventional marriage practices prevalent in India, the control over women’s body, mind and
well being is exchanged from father to the husband. These ideas reduces woman to a property

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possessed by men. Moreover, for centuries, men are controlling women’s right to property,
employment and earning besides their claim to their bodies and bodily integrity as fathers or
husbands. In such situation, a man is licensed and entitled officially and formally to exploit,
abuse and derive pleasure from violating women’s body. Women are seen as powerless creatures
without agency or autonomy and as merely an object of pleasure. Sex becomes an unquestioned
and unchallenged act within the relationship. Therefore the stories of violence, abuse and sexual
assault are common within the marriage. The NCRB Report for the year 201314 shows that 117
victims of incest rape (rape by blood relatives) were reported in 2012 where as parents/closed
family members or 1.7% were involved in rape cases (539 out of 31,807) and in 7.3% cases
(2,315 out of 31,807) relatives were involved. This statistics does not include numerous cases
where wives are being raped by their husbands. Also, marital alliances in such societies are
blindly considered as sacrament rather than a contract between two equals. Nonetheless, the
`sacramental’ nature could not protect violation of women within marriages. Marriage vows are
often not kept and neither these promote trust and mutual respect when it comes to the question
relating to the dignity of women. Moreover, the glorification of Hindu marriage as an alliance
between two families rather than two individuals could not prevent women from silently
suffering the abuse or even face deaths15.The ideal representation of holy monogamous
commitment therefore has been shattered over the years with the rise in domestic violence, incest
and brutal violation cases within families.

Marital Rape Occurs Due to Assymetrical Power Relations within Marriage

Marriage in a patriarchal Indian society is more about the assertion of masculinity rather than a
partnership. This asymmetry in the marital relationship is sanctioned by the law, religion and
society. For instance, the Indian legal system is guided by the Laws of England as prevalent
during 18th century. The Blackstone’s Commentaries16 therefore still inspire the ideologies
determined by the courts in India. The Blackstone’s commentaries highlighted that marital
contract is based on the superiority of the husband as a `lord’, `master’ or a `provider’ and puts
wife in the subjugated position. Also, besides this legal position, culturally and socially, man is
considered as superior being in patriarchal societies. The social and cultural norms imagine a
man to `conquer and colonize while a woman is expected to receive, surrender and accept’17.

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The social construct of manhood entails exhibiting men-centric aggressive power affirming
dominance. For an average Indian man, therefore, manliness is about acting tough, using his
privilege, assert himself, determine rules in relationships, and, above all, control women. A man
who fails to affirm power in the marital relation is being ridiculed and derided of lacking manly
traits. Also, the conventional rule upholds man as a provider and a protector. During the marriage
ceremonies, a man vows to protect a woman as his wife and therefore he is empowered by the
social and customary norms to be dominant. The foundations of marriage are built around man’s
entitlement on wife as a possession. The customary practices bequeath a man an unchallengeable
right over a woman’s body which sanctions to use violence in cases the demand is not met. A
man forcing himself on his wife is seen as claiming his power and asserting conjugal rights.
Men, often use sex as a tool to punish and subjugate their wives. They refuse to maintain a
woman in case she refuses or resist to demand for sex. This dominance and power makes the
relationship fragile as it involves coercion by the perpetrator to control the woman.

For a woman, sex in marriage implies silent submission with no autonomy or control over her
own body. The traditional notions deny woman of any agency and nurture gullible, passive,
submissive, femininity that compel them to remain silent in order to preserve peace within the
family. A woman is valued only for her sexuality and fertility. Frequently, women are
conditioned and socialized to believe that marital rape is acceptable. Therefore, rape which is
considered as a criminal outside home systematically becomes acceptable within marriage. It
fails to understand the fact that a democratic and egalitarian society cannot justify different
yardsticks to determine the penalties for violence within the homes and outside it. Marital rape
therefore has to be seen in the context of in-egalitarian, male dominated and abusive relationship
where an oppressor repeatedly uses his abusive position to oppress a woman.

Marital rape Implies Betrayal of Trust

A marriage, generally, is a bond of trust and affection. However, in the feudal patriarchal
context, due to financial and otherwise dependency of women on men, the relationship entails
coercive potential. In marital rape, a woman is continuously raped by person by whom she
believes or supposes loves her. Marital rape is destructive because it threatens the elementary
roots of a relationship where a woman may end up feeling humiliated, perplexed and deceived.

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She shares her intimate history, her home, her children, her secrets, her fears and her life with the
perpetrator. Marital rape, therefore, involves a betrayal of this trust. It questions the very essence
of human relationship. In this situation, a man can no longer be trusted as a protector and a
woman cannot turn to his perpetrator to seek comfort or gain reassurance. Home, remains no
longer safe for a woman.

Marital Rape is a part of a Larger Continuum of Violence Against Women

Marital rape is prevalent for ages as a social problem though silence has been maintained around
it. In early 2000, the United Nations Population Fund in a survey found that two-thirds of
married Indian women have been forced into sex by their husbands. The National Family Health
Survey of India18 (2005-2006) in its study of over 1.25 lakhs women in 29 states observed that
40 percent of married women in the age group of 15-49, at least once, had experienced physical,
sexual or emotional violence perpetrated by spouses. In 2011, a study conducted by the
International Center for Research on Women19 revealed that one in every five Indian men
surveyed admitted to forcing their wives into sex. These are numerical figures. However, the
qualitative analysis reveals that marital rape and sexual violation is not merely related to episodic
forced or penetrative sex, rather it is a larger issue.

Vaginal penetration is a part of such subjugated life. Seeing marital rape only as penetrative sex
limits the definition of sexual violence within marriage.20 Those working with women who face
abuse within home often came across the gory stories of women being raped every night over
prolonged period even during child birth and pregnancies. Wives are thrashed violently because
they refuse to sex. Repeated incidences of violence include insertion of objects, harming the
woman’s body, physically injuring it resulting in harmful effects like miscarriages, still births,
vaginal infections and exposure to sexually transmitted diseases. Frequently, accounts of sexual
abuse are accompanied by the brutal saga of continuous physical, mental and emotional violence.
This is clubbed with intimidation and humiliation often used to control wives. Segregating
marital rape from others forms of brutalities and abuses, therefore, is impossible. The tribulations
comprises of increased risks to unwanted pregnancy, repeated pregnancies and abortions or
infertility. Many survivors of marital rape reported physical discomfort, sexual dysfunction,

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emotional pain, psychological trauma, anxiety, insomnia, shock, depression, negative self image
and suicidal thoughts even years out of the violence.

The descriptions of tortures within home are often supplemented by the evidences of broken
limbs, fractured skull, battered bodies, shattered minds and even episodes of witnessing the rape
of minor daughters. Evidences indicate that the husbands have sex with other women because
they find their wives repulsive. There are narratives relating to husbands compelling wives to
have sex with bosses, colleagues and friends. These sexual acts are committed because women as
wives are powerless and vulnerable. Violent strategies and coercive tactics are used to evoke
compliance and obedience. The situation becomes traumatic in the case of marriage where
women are compelled to continue to live with their abuser. They often end up feeling inadequate,
helpless and powerless with no support mechanisms. Brutalities continue in the form of rape by
father in laws, brother in laws and other relatives where the voices of women are suppressed and
are forced to endure violence. Countless women are forced to survive with scars which never
heal, but telling about the same it is difficult.

Marital Rape is More Traumatic than the Rape by a Stranger

Susan Brownmiller21 has observed that rape is related to assertion of power and it is a conscious
process used by men to intimidate women to keep them in constant state of fear. In a marital
relation, a woman is continuously forced to live invariably under the state of threat and fear
because there is no escape from it. Though there can be no distinction between a `sacred’ rape
carried out within the marital relationship and the criminal or violent rape carried out by the
strangers, yet marital rape is much more brutal, emotionally painful and harmful because in such
cases a woman is forced to live with the perpetrator day in and day out for a prolonged period
and could not find refuge anywhere else. In fact, it is one case that while denying bail to a man
accused of sodomizing his pregnant wife, the Delhi High Court observed, “A victim of marital
sexual abuse cannot be discriminated against only because she is the wife of the offender and has
to be treated as any other rape victim”22.

In a stranger rape, the enemy is outside the `home’ – a person from an affluent class or caste, a
militant who is a rapist, a woman is raped during war, or a woman is raped when she is in a

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vulnerable situation. However, in case of marital rape, the enemy lies within the home. He is not
a stranger who is using the axis of caste, class or war. In cases of marital rape, the vulnerability
of a woman is not limited for a shorter period like walking alone on a lonely road at night.
Rather, in case of marital rape she leads a vulnerable life over a longer period. The security
provided within marriage is no longer available. This insecurity makes her helpless and
powerless. Marital Rape implies continuous humiliation, indignity and shame and the woman
has to cope with intense emotional trauma which is embodied by the culture of shame and
silence maintained around the situation of marital rape where a woman is conditioned not to talk
about it. It is a form of violence which is conditionalized as normal, saying no to which is
unthinkable and may invite other forms of violence.

Contrary to popular belief, marital rape is much more traumatic and has long lasting emotional
impact as juxtaposed to rape by a stranger where violence may not occur as frequently and the
perpetrator is not intimately known to the victim. Raped by a stranger, a woman is allowed to
raise her voice and in the process may gain sympathy of society and community. However, raped
within marriage, no one will empathize with her as it is her `duty to keep her family intact and
happy’, and by complaining against such `trivial, non issues’ she is crossing the boundaries by
tearing apart the lines drawn between `bedroom privacy’ and the public domain outside the
family.

Rape is A Crime Against Women, It is Not related to the Family Honour

Historically, women are considered as custodian of honour of their families, tribes and
communities. Rape is therefore considered synonymous with abduction and treated as an attack
on community and the theft of a man’s property. And even today, this norm continues to dictate
the common notions and practices. Women are still treated as the property of men within social
and legal discourses. The fact that marital rape is not recognized because it is assumed that a man
cannot harm himself. This principle is also envisioned by Blackstone as `Unities Doctrine’23
where a man and a woman once marry their identities gets merged and they become one person
in the eye of law. These norms deny looking at marital rape as a serious crime against a
woman’s body or integrity and treat it as an ethical and less serious issue linked to family honour
and injury to a man’s property. However, this doctrine fails to recognize the fact that rape is a

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violent and an aggressive crime against a person where the object of law should be to deter
violence.

Consent within the Marital Relationship

Underlying the principle of consent in the marital relationship is the idea of respect for woman as
a person and as a partner. It involves freedom to say `yes’ or `no’ to a sexual encounter.
Coercion to sex against one’s will is humiliating and disgraceful. However, the law sees it
otherwise.
During 1600s Mathew Hale, Chief Justice in England, in his famous thesis entitled Historia
Placitorium Coronea24 wrote, “The husband cannot be guilty of a rape committed by himself
upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given
herself in kind unto the husband, whom she cannot retract.” According to this principle of
implied consent, the permission given by the wife at the time of marriage is considered as
irrevocable blanket consent to lifelong sexual intercourse. It is blindly assumed that a woman
gives up all rights to her body and to herself, once she goes through the ceremony of marriage. It
fails to recognize the fact that the consent to enter into a matrimonial relationship in no case
implies lifelong consent to be violated and abused sexually.

This principle of implied consent has been overruled by the courts in many countries. The New
Jersey Supreme Court in the matter of State v Smith25 stated that, “this implied consent rationale,
besides being offensive to our valued ideals of personal liberty is not sound where the marriage
itself is not irrevocable. If a wife can exercise a legal right to separate from her husband and
eventually terminate the marriage 'contract,' may she not also revoke a 'term' of that contract,
namely, consent to intercourse? Just as a husband has no right to imprison his wife because of
her marriage vow to him... he has no right to force sexual relations upon her against her will. If
her refusals are a 'breach' of the marriage 'contract', his remedy is in a matrimonial court, not in
violent or forceful self-help”. It has been deduced that this principle of implied consent may
apply to consensual conjugal acts and not to violent sexual assaults26. The courts in US and UK
have held that the concept of implied consent is unreasonable as wife who recites marriage vows
cannot consent to being raped by her husband or to violence against her will.

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In India, the sacramental nature of marriage as a lifelong bond eliminates and overlooks the
notion of consent. A wife is treated as a sex slave and more importantly this form of slavery is
officially and legally sanctioned and legitimized with no escape routes made available to the
woman. It also endorses a man’s right over his wife despite of the fact that she may finds sex as
an unwelcome, frightening, painful or violent encounter. This assertion of conjugality is based on
the concept of diminished responsibility which assumes a woman as a asexual being with no
agency or autonomy to consent to sexual acts.

Marriage is No License to Rape

As mentioned above, the common unreasonable assumption that guides the society is that
marriage is a license to rape and when a woman enters into the bond of matrimony she willfully
consented to be violated sexually for life. Non consensual sex within marriage has not been
recognized in India. It is a culturally sanctioned way of subjugating a woman. Laws and
practices need to understand the fact that rape is a rape whether it occurs within the bedroom or
at the public place. The concept of `blanket consent in marriage’ is arbitrary and barbaric. A
relationship between a man and woman is not a license to rape. Also, the fact that rape occurs
within the four walls of house does not entail that it is a lesser act of violence.

Personal is Political
Marital rape is not being criminalized because it happens within the privacy of home. This
argument ignores the fact that marital privacy ensured by the walls cannot be used as a reason to
perpetuate injustice and inequalities within domestic sphere or exclude women from seeking
justice. The courts elsewhere have held that marital privacy is not an absolute right. The court in
USA has also declared that the state must balance its interest in protecting marital privacy
against women’s interest in protecting bodily integrity27. Using the language of dualism,
polarizing between private and public to entrench existing structure of power and domination
the law creates a divide. The women’s movement has long back been promoting the ideology of
`personal being political’ because marital rape is not a private issue and home is not a
`impenetrable sanctuary’ for a man to perpetrate violence on women. This has been also rightly
explained in the judgment in Sareetha’s case28 where the court opined, “… any plausible
definition of right to privacy is bound to take human body as its first and most basic reference for

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control over personal identity… [the] right to privacy belongs to a person as an individual and, is
not lost by marital association.”

Are All Women Liars and Always File False Cases?

One of the arguments is that once marital rape is criminalized, women will abuse the process. It
is based on the assumption that most of the women are deceitful and vindictive. It blindly
presumes that most women lie and in order to take revenge they make false accusations. By
raising this argument, the system demeans women by portraying them as vamps, liars, defective
and deranged complainants and while at the same time debasing the faith in the legal machinery.
Ironically, pressure groups have been created and many men’s organizations are lobbying to
dilute the provisions of law. The backlash against women’s rights is making a dent in the justice
system. The women who complained against the violence are portrayed as `vamps’ by those who
believe that maintaining the sacredness of the institution of marriage is a responsibility of women
as `wives’. In case a woman decides to speak or attempts to seek a legal remedy, while
confronting the vicious norms of patriarchy she is seen as an `evil’ woman, a sinner, a family
breaker, a trouble maker, a person less tolerant of cultural values and a malefactor. Women are
often blamed for failed marriage as lacking the virtues of tolerance and patience and any attempt
to dissolve the marital tie is considered as an act of rebellion. In Arnesh Kumar v State of
Bihar29, the Supreme Court has held that, “the fact that Section 498 A is a cognizable and non
bailable offence has lent it a dubious place of pride amongst the provisions that are used as
weapon rather than shield by disgruntled wives. The simplest way to harass is to get the husband
and relatives arrested under this provision”.

This fear of filing frivolous complaint is far from true. This is because the criminal justice
system in India is technical, complicated and complex. It ensures that innocent individuals are
not frivolously prosecuted or wrongly convicted and there are enough safeguards to handle false
complaints. Further, proving a crime of rape or marital rape is not an easy task for a woman in a
male dominated system. The social stigma attached to filing a rape case is enormous as
prosecutions are embarrassing for the victims rather than the perpetrator of the crime.
Fabricating a false case therefore is not a convenient option when majority of women are not
even aware of legal provisions. Moreover, seeking justice is not a cheap, easy and quick process.
Also, the

15
prevalent biased perception among the police, the judges, lawyers and the other stakeholders
hurdles women’s access to justice. Hence, this is not a good enough reason to deny women
a legal framework to fight violence.

Voicing Concerns of Brutalities Within Intimate Relations Will Aid to Address Social and
Structural Realities
The arguments against criminalizing marital rape upheld that it will have disastrous effect on
families as women will file false cases against their husbands. This line of argument presumes
that immediately after amending the law women trapped in sexually abusive marriage will walk
out of the relationship and will press criminal charges against their husbands. This is certainly
not true. It denies a woman her right to seek a legal redress against her attacker and subject her
to harsh physical and emotional penalties as a wife and a victim of forcible sexual assault. It
ignores the fact that it is the husband's violent act of rape and not the wife's subsequent attempts
to seek protection through the criminal justice system that disrupt a marriage.

Experiences show that many women remain silent in abusive relationship because of reasons like
shame, family honour, lack of social support, economic and social dependence and concerns for
children among others including problems that exist within the legal system and difficulties they
face in seeking justice. Also, it is not easy for a woman to provide evidences for such crime or to
prove her case against an abusive husband beyond doubt. The justice system is dictated by
patriarchal ideologies. Seeking legal redress is therefore not an easy process30. State has hardly
created any avenues to support women who face violence within homes. Natal families, in many
cases, do not support women. In such cases, marital rape and domestic violence is a price women
pay to survive. The argument further ignores the fact that an abusive relationship is already at the
verge of being broken, therefore a voice against brutalities in relationship will in no way further
harm the marital relation rather it may prevent collapse of marital institution.

Is Marital Rape a Crime?

Rape of any individual, married or unmarried, is a violation of individual fundamental right to
dignity and bodily integrity. Legally, marital rape may be construed as a crime because it fulfills
all the criteria required to establish it as an offense. It involves injury, hurt, harm and humiliation

16
of a woman with the intent or mensrea to do so. Yet, the laws condones sexual abuse in a
domestic relationship only if it is life threatening or grievously hurtful. This is because existing
rape law is a male construct that serve males interest and therefore fails to recognize marital rape
as a criminal wrong. Laws are designed not to preserve dignity of women nor are these applied
to save lives of women being abused, but to preserve the sanctity of the marital institution.
Women therefore end up paying heavy price to protect the institution of marriage. Legal
discourse is embedded in the larger patriarchal discourse from which it derives basic notions and
stereotypical assumptions about gender roles. These biases distort the spirit of the law in the
processes of application and enforcement.

The Biases in Legislating and Implementing the Law

The Law Commission in its 84th report31 reasoned that forced sex with judicially separated wife
is punishable seems because she is no longer the "wife" (de facto) and hence the husband has no
right to forcibly enforce his conjugal rights. Such a narrow approach again reinforced Victorian
legacy rather than upholding democratic and egalitarian concept of marriage. Further, the Law
Commission when in its 172 report32 suggested that enactment of any law relating to marital rape
will leads to excessive interference within marriage, ignored this provision of restitution of
conjugal rights where state is intervening in private relationship between two people to control
their role in a bedroom. The state is also intervening through controlling the Lesbian, Gay and
Transgender relationships and other provisions in criminal and civil laws. Therefore,
criminalizing marital rape is no excessive intervention by the state.

Do We Need More of Aruna Shaunbaghs or Nirbhayas to Address Structural Inequalities

within the Law?
Historically, the analysis of rape cases from Mathura’s case to Bhanwari Devi to Nirbhaya’s
case, and recently the death 13 year old girl from Punjab to death of Aruna Shaunbagh after 42
years she was raped, all reflect on biases we have in our social and legal system that could not
prevent rape and neither could provide justice to victims. Why the country which boasts of its
many developments could not deal with basic aspect of providing a dignified life to its half of the
population? The reasons may lie in the patriarchal asymmetric structures and attitudes which do
not see women as equal partners within homes or outside. Feminists in India have often use axis

17
of class, caste, difference in social background and male power to explain the phenomenon of
rape by strangers, however, marital rape has a different connotation. Embedded within the
marital relations and entrenched within intimate conjugal relation, it is defined and designed by
in-egalitarian patriarchal social structure.

The biased mindset, paradigm of men women inequality, as well as deeply entrenched
discriminatory social customs demeans women. Social norms are so inequitable that these allow
or sometime compel women to marry their rapists. These biased norms are adopted to
consolidate the property interest of men rather than the vindication for victim’s injury or
recompense women. The frantic protests that took place after Delhi gang rape case commenced
debates around the issue of rape by strangers but these could not highlight the issue of rape
within marriage. The silence around marital rape maintained by the legal and the social system
act to empower the abuser, the rapist, the perpetrator of violence. What has been neglected is the
fact that rape is rape irrespective of the fact that it is committed by the person in intimate relation
within the privacy of home.

Making Home Safe

To address the issue of violence against women in a comprehensive manner, the journey has to
begin from every household and from every person. It is essential to make home a safe place for
women and children. Therefore, until the discussion around the issue of respect to women and
their dignity within home is initiated the situation of women is not going to improve. It is
essential to view marriage as an equal partnership. The need of the hour is to embrace the
concept of consent within marital relation. Acknowledging that fact that women have a right
over their bodies is essential to promote the concept of consensual sex. Challenging the deeply
ingrained stereotypes, widespread entrenched mentality and questioning the biased values may
provide the solutions to the issue of discrimination and violence within marriage. The
intersection of religious belief, politics and law needs to take anti-violence stance. Along with
alteration in the formal rules, what is required is the open discussions to define sexual coercion
and violence within a marriage. In addition, need is to reform to the justice system while
addressing the fundamental structural inequalities that promote the environment of oppression.
Legal rules and practices that favour perpetrators rather than the survivors need to be
questioned.

18
This oppressive system has to be replaced by the structure that promotes women’s equality,
sexual autonomy, self determination, dignity and physical integrity. While amendments to
criminal laws is a significant symbolic recognition to women’s equality and right to bodily
integrity, it has to be accompanied by systemic social and political transformations including
provisions for economic and social independence for women. Questions against the institution of
marriage itself as a biased oppressive structure has been raised by some of the feminists who
believe that women’s liberation lie in autonomy and self-determination. The emerging sexual
revolution therefore has to deal with emerging questions rather than dealing with superficial
issues of misuse of law or preserving sanctity within the marriage. The slogan of `making home
safe’ needs to be broadly interpreted when situated in the context of rape within intimate
relationship.

The Author is an activist and a researcher working on gender, law and governance issues. The
views expressed in this essay are based on her experience of working with women’s survivors of
domestic violence for over two decades. The author may be contacted at
shalu_nigam@rediffmail.com

1
Described by William Blackstone (1769) Of Husband and Wife, Commentaries on the Laws of England Book 1
Chapter 15 http://lonang.com/library/reference/blackstone-commentaries-law-england/bla-115/
2
Ministry of Home Affairs (2015) Women Subjected to Marital Rape, Government of India, Press Information
Bureau dated April 29, http://pib.nic.in/newsite/PrintRelease.aspx?relid=119938
3
Parliament Standing Committee on Home Affairs (2013) One hundred and Sixty Seventh Report on The Criminal
Law Amendment Bill 2012, Rajya Sabha Secretariat, New Delhi http://www.prsindia.org/uploads/media/Criminal
%20Law/SCR%20Criminal%20Law%20Bill.pdf
4
Law Commission of India (2000) Review of Rape Laws, 172nd Report, New Delhi
5
Shashi Bala v Rajiv Arora FAO No. 185/2001 Delhi High Court, Judgment delivered on 21.3.12
6
The Hindu Marriage Act 1955 Section 13 (1)
7
The PWDVA Act 2005 defines sexual violence under the definition of domestic violence, however, a woman can
seek Protection Order and not a criminal remedy under this law
8
AIR 1984 Delhi 66
9
AIR 1983 AP 356
10
The Supreme Court in the matter of Saroj Rani v Sudarshan Kumar Chadha 1984 AIR 1562 upheld the Delhi
High Court Ruling and overruled decision by the AP High Court while arguing that introduction of equality clause
within home will destroy the institution of marriage.
11
State v Aftab Alam, Special Fast Track Court, Dwarka Court SC No. 131/13 Unique Case ID No.
02405R0075252013 Date of Pronouncement 05.06.2014
12
Engels Friedrich (1973) The Origin of Family, Private Property and State, Moscow: Progress Publishers
13
Russell Bertrand (1929) Marriage and Morals Republished in 2009 by Routledge: London and New York
14
National Crime Record Bureau (2013) Crime in India http://ncrb.gov.in/
15
The Asian Age (2015) The Government’s Refusal to Criminalize Marital rape is regressive, May 7,
http://www.asianage.com/debate/government-s-refusal-criminalise-marital-rape-regressive-171
16
Ibid 1
17
Grace (2012) William Douglas Are Women Human? The Gospel Coalition and Sanctified Rape Culture July 18

19
http://arewomenhuman.me/2012/07/18/doug-wilson-gospel-coalition-rape/
18
Sunita Kishor and Kamla Gupta, ‘National Family Health Survey (NFHS-3) India, 2005-06: Gender Equality and
Women’s Empowerment in India’, August 2009,
http://www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf, pp 95-109.
19
ICRW (2014) The Making of Sexual Violence: How Does a Boy Grow up to Commit Rape? Evidences from five
IMAGES countries Washington DC http://www.icrw.org/sites/default/files/publications/The%20Making%20Of
%20Sexual%20Violence%20-
%20June%202014%20-%20WEB%20PREVIEW.pdf
20
Agnes Flavia (2015) Marital rape: Why Both Sides have Got it Wrong, The Times of India dated May 17
21
Susan Brownmiller (1993) Against Our Will: Men, Women and Rape, New York: Ballantine Books
22
The Outlook (2014) Marital Rape Victims Be Treated Equally with others: HC Dated March 14
http://www.outlookindia.com/news/article/marital-rape-victim-be-treated-equally-with-others-hc/831232
23
Ibid note 1
24
Hale Matthew (1736) The History of Plea of Crown reprinted in 2004 The Lawbook Exchange Ltd. England
25
85 NJ 193 1981
26
As held by the New York Court of Appeal in the matter of People v Liberta 1984
27
People v. DeStefano 467 NYS New York County 1983
28
Opcit n 7
29
Supreme Court of India Criminal Appeal No. 1277 of 2014 SLP Cr No. 9127 of 2013
30
Nigam Shalu (2005) Understanding Justice Delivery System in India from the perspective of women litigants as
victims of domestic Violence New Delhi: CWDS http://www.cwds.ac.in/OCPaper/UnderstandingJustice.pdf
31
The Law Commission of India (1980) 84th Report on Law of Rape New Delhi: The Union of India Press
32
The Law Commission of India (2000) 172nd Report on the Review of Rape Laws, New Delhi: the Union of India
Press

20