RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB

LEGAL METHODS AND RESEARCH METHODOLOGY

TOPIC:
MARITAL RAPE – MORAL, SOCIAL AND LEGAL ISSUES

Name -
 Table of Contents

CHAPTER 1 – INTRODUCTION .........................................................................................................1

CHAPTER 2 – CONSTITUTIONAL AND LEGISLATIVE MEASURES .......................................4

CHAPTER 3 – MORAL, SOCIAL AND LEGAL CHALLENGES ...................................................8

CHAPTER 4 – JUDICIAL APPROACH ............................................................................................11

CHAPTER 5 – RECOMMENDATIONS ............................................................................................15

CHAPTER 6 – CONCLUSION ............................................................................................................17

Chapter 1 – Introduction

1
This paper examines the idea of marital rape, issues caused by marital rape are then
discussed in the study. The laws governing the issue of marital rape are examined. The
paper then goes into potential faults in such a cure. It then outlines the researcher's
opinions.

The following has been discussed in the paper –

1. The essence of the concept to be discussed in subsequent chapters.
2. Research Question – What are the moral, social and legal challenges tethered to
the problem of marital rape in India ?
3. Hypothesis –
a. Marriages in India are sacrosanct institutions. The issue of marital rape is
the tragic reality of unfortunate women who are tied in arranged marries and
remain legally unprotected from the realities of marital rape.
b. In socio-centric society, like ours when marriage is considered as an integral
part of life, morality is construed in a way that any kind of violence by
husband is socially justified.
c. Indian court’s morality also reflects the social perception that women are
still somewhere property of the husband or under the control of the husband.
d. The lack of law criminalising marital rape in India is encouraging violence
against married women in India and their constant, perpetual objectification.
4. Research Methodology – The doctrinal methodology is employed to do the
research work. The process has been done meticulously and effectively by
analysing case laws, concepts, works from other authors, reports, etc.
5. Research Objective –
a. To trace evolution of rape laws in India
b. To analyse moral, social and legal challenged that are tethered to the
problem of marital rape
c. To recommend and suggest measures to combat marital rape in India
6. Literature review –
a. Rayburn, Corey – ‘To Catch a Sex Thief’1 – It is a classic international work
on the concept of rape. This piece describes the notions that lead to the
decisions of the judges and the jury in rape cases. It also describes how

1
Yung, Corey Rayburn, To Catch a Sex Thief: The Burden of Performance in Rape and Sexual Assault
Trials. Columbia Journal of Gender and Law, Vol. 15, p. 436, 2006, Available at
SSRN: https://ssrn.com/abstract=889087 or http://dx.doi.org/10.2139/ssrn.701267
2
 difficult it is to prove consent in these cases and the role ascribed to the
victim.
b. Kamthan, Manika - ‘Challenges in Enforcement of Rape Laws in India: A
Feminist Critique’– The author presents a view on existing rape laws in
India through feminist perspective, backed by empirical data.2
c. Rao, Raveena Kallakuru and Soni, Pradyumna, ‘Criminalisation of Marital
Rape in India : Understanding its Constitutional, Cultural and Legal Impact’
– The author traces the history of rape laws in India and examines the three-
dimensional challenges that hinder the criminalisation of marital rape in
India. The authors provide for a model for criminalisation of marital rape. 3
d. Patel, Karina – ‘The Gap in Marital Rape law in India : Advocating for
Criminalisation and Social Change’- The author traces the rape laws in India
and presents the arguments for and against the criminalisation of marital
rape in India. The author also provides for various measures to combat the
problem of marital rape in India.4

2
Kamthan, Manika - ‘Challenges in Enforcement of Rape Laws in India: A Feminist Critique’ available
at file:///Users/user/Downloads/Challenges_in_Enforcement_of_Rape_Laws_i.pdf
3
Rao, Raveena Kallakuru and Soni, Pradyumna, ‘Criminalisation of Marital Rape in India :
Understanding its Constitutional, Cultural and Legal Impact’ available at
file:///Users/user/Downloads/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
4
Krina Patel, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social
Change, 42 FORDHAM INT'L L.J. 1519 (2019).
Available at: https://ir.lawnet.fordham.edu/ilj/vol42/iss5/7
3
A large population of women has faced the brunt of the non-criminalisation of the
practice... Marital rape ought to be a crime and not a concept... It has long been time
to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily
autonomy of all women, irrespective of their marital status,” - said Justice Pardiwala,
as he dealt with a man’s petition to quash the charge of marital rape against him.5

Chapter 2 – Constitutional and Legislative Measures

The Indian Penal Code first included "rape" as a legally defined offence in 1860. Before
this, various and occasionally conflicting laws were frequently in effect throughout
India. The Charter Act, 1833, passed by the British Parliament, which resulted in the
creation of the first Law Commission and its chairmanship by Lord Macaulay, marked
the beginning of the codification of Indian laws.
The Law Commissioners made the decision to divide the country's criminal code into
two distinct codes. The Indian Penal Code, which created the substantive law of crimes,
was the first to be published in a statute. This was passed in October 1860, but it wasn't
implemented until January 1st, 1862, which was 15 months later.
The first Code of Criminal Procedure, which codified the rules governing the
establishment of criminal courts and the process to be followed throughout the
investigation and prosecution of the offence, was enacted in 1861.
The IPC's Section 375 made it illegal for a male to have sex with a woman if it was
done against her will or without her consent. The act of having intercourse with a
woman after putting her or anybody else she is interested in fear of harm or death was
included in the definition of rape.
Additionally, having intercourse with a minor, with or without their consent, is seen as
rape. However, under the exemption, a man's sexual activity with his wife, provided
that she is over the age of 15, is not rape. Anyone who commits the crime of rape faces
a sentence ranging from seven years in prison to life in prison under Section 376.6
The criminal code's treatment of rape and sexual assault incidents did not change for
more than a century after 1860, not until the landmark Mathura custodial rape case. A

5
https://www.hindustantimes.com/india-news/judges-appointment-coincides-with-marital-rape-case-
reaching-supreme-court-101652639430100.html
6
Kamthan, Manika - ‘Challenges in Enforcement of Rape Laws in India: A Feminist Critique’
available at file:///Users/user/Downloads/Challenges_in_Enforcement_of_Rape_Laws_i.pdf
4
young Adivasi girl named Mathura was allegedly sexually assaulted on March 26,
1972, by police officers at the Desai Gunj Police Station in Maharashtra. In the trial
that followed, the court found that although rape had not been proven and that she was
habituated to having sex, she had engaged in it at the police station.
Whilst the sessions court cleared both police officers, the High Court overturned that
decision. The Supreme Court reversed the decision of the High Court in this instance,
ruling that "the intercourse in question is not established to amount to rape."
The highest court said no injuries were discovered on the girl following the encounter,
and "their absence goes a long way to demonstrate that the purported intercourse was a
calm affair."
The contentious decision spurred protracted demonstrations around the nation calling
for an amendment to the current rape laws. The Criminal Law (Second Amendment)
Act of 1983 was the result of this. In the Indian Evidence Act of 1872, a new Section
114A was included, presuming the absence of consent in some rape proceedings if the
victim so claims. Custodial rape cases were covered by this.7
The UN Commission for the Elimination of Discrimination Against Women proposed
to India, among other things, that marital rape be made a crime in April 2015, according
to the Ministry of External Affairs and the Ministry of Women and Child Development.
There was no suggestion to abolish the exemption since the Law Commission of India
did not advocate making marital rape a crime in its 172nd Report on Review of Rape
Laws.8
The addition of Section 228A to the IPC makes it illegal to reveal the identity of the
survivor of certain offences, such as rape. The Law Commission recommended in its
172nd report that the scope of rape law be expanded to make it gender neutral in
response to the Supreme Court's directive in a public interest litigation (PIL) brought
by a non-governmental organisation to broaden the definition of sexual intercourse in
Section 375 of the IPC.
The 172nd report prompted changes to the Indian Evidence Act in 2002, but the
country's rape laws remain gender-specific to this day because only "men" can commit
the crime.

7
Krina Patel, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social
Change, 42 FORDHAM INT'L L.J. 1519 (2019).
Available at: https://ir.lawnet.fordham.edu/ilj/vol42/iss5/7
8
Home Ministry Refuses to Consider Marital Rape as Criminal, Economic Times, Apr. 29, 2015
5
In rape or attempted rape trials, a new rule was introduced that forbade cross-examining
the victim over her overall "immoral character."
The Criminal Law (Amendment) Act, which enlarged the definition of rape and
toughened the penalty, was passed in 2013 as a result of the widespread public outrage
in 2012 following the gang rape and murder on December 16 in Delhi.
On the advice of the Justice J.S. Verma Committee, which was established to review
the nation's criminal laws and make recommendations for improvements, Parliament
adopted the adjustments.
The 2013 Act, which took effect on April 2, 2013, lengthened jail sentences in the
majority of cases involving sexual assault and added the death penalty to the list of
punishments for rapes that result in the victim's death or place her in a vegetative state.
It also established brand-new offences like voyeurism, stalking, and the use of unlawful
force on a woman with the goal to cause her to undress.
From the previous 10 years to life in prison, the penalty for gang rape has been doubled
to 20 years to life in jail.
Before this there was no clear legal definition of offences like making sexually
suggestive comments, demanding or asking for sexual favours, or using unwanted
physical contact, words, or gestures However, these offences were precisely defined
and punished by the 2013 Act. Stalking was similarly made a crime that may result in
up to three years in prison. The sentence for an acid assault has been extended to ten
years in prison.
In Jammu and Kashmir's Rasana hamlet, close to Kathua, an eight-year-old girl was
kidnapped, raped, and killed by a group of men in January 2018. The tragic incident
sparked protests across the country and demands for more severe punishment. The
Criminal Law (Amendment) Act, 2018, which was enacted as a result, set the death
penalty as a potential punishment for the first time for the rape of a girl under the age
of 12, with a minimum sentence of 20 years in prison.
The IPC also received a second new provision that deals exclusively with the rape of a
female under the age of 16. The provision made the offence punishable by a minimum
sentence of 20 years in prison, with a potential maximum sentence of life. The
minimum sentence for rape, which has never been altered since the IPC was introduced
in 1860, was raised from seven to ten years in prison.9

9
Krina Patel, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social
Change, 42 FORDHAM INT'L L.J. 1519 (2019). Available at:
https://ir.lawnet.fordham.edu/ilj/vol42/iss5/7
6
The rape law under the Indian Penal Code had gone through a lot of amendments. In
1983, the amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital
rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added. Under
section 228A[2] of the Indian Penal Code, No person can disclose the name of the rape
victim and if anybody discloses the name, he shall be punished with either description
for a term which may extend to two years and shall also be liable for fine.
Under section 114-A[3] of the Indian Evidence Act, the presumption can be made as to
the absence of consent in certain prosecutions for rape. Under section 53(1)[4] of the
Code of Criminal Procedure, When a person is arrested on a charge of committing an
offence of such a nature and alleged to have been committed under such circumstances
that there are reasonable grounds for believing that an examination of his person will
afford evidence as to the commission of an offence, it shall be lawful for a registered
medical practitioner, acting at the request of a police officer, not below the rank of sub-
inspector, and for any person acting in good faith in his aid and under his direction, to
make such an examination of the person arrested as is reasonably necessary in order to
ascertain the facts which may afford such evidence, and to use such force as is
reasonably necessary for that purpose.
Having sexual relations with one's spouse without the latter's consent or with force is
known as "marital rape" or "spousal rape." When a guy engages in unwanted sexual
activity with his wife without her agreement, he typically threatens, uses force, or
actually physically harms her. As per the provisions of the Protection of Women from
Domestic Violence Act, 2005 (POCSO Act), marital rape is a type of domestic or local
violence. Under this Act, a lady can go to court and get a legal partition from her husband
for marital rape. However, women in India can file cases against marital rape on the
grounds of cruelty or domestic violence and obtain judicial separation from their husbands
(divorce). In 1993, it was declared that any violence against women, including marital rape,
was recognized as violative of women’s Fundamental Human Rights provided to her under
international laws in the U.N Declaration on Elimination of Violence Against Women
(DEVAW).10

10
Krina Patel, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social
Change, 42 FORDHAM INT'L L.J. 1519 (2019).
Available at: https://ir.lawnet.fordham.edu/ilj/vol42/iss5/7
7
 Chapter 3 – Moral, Social and Legal Challenges

The interplay between culture and law has been studied throughout history. Law and
culture coexist together, influencing and being impacted by one another. On a legal
level, this connection has been thoroughly researched. However, we contend that this
dispute is unimportant for the purposes of this work.
We compare the argument over free expression and the rules against obscenity in India
to the argument for criminalising marital rape as being based on the Constitution rather
than culture. Article 19(2) lists "morality" as one of the justifications for limiting free
expression. According to the Supreme Court, "morality" refers to "public morality."11
This popular idea of morality might be at odds with what the Constitution considers to
be moral. Constitutional morality is the term used to describe the morals of the
Constitution.
The Constitution's morality upholds ideas like gender equality and the right to bodily
autonomy. These could exist in blatant opposition to social morality. It is risky to accept
the justification that public morality will be taken into consideration when determining
constitutional morality.
When viewed in the context of the cultural backdrop, it is true that the phrase "marital
rape" in our instance is an oxymoron. This does not, however, change the fact that the
exemption for marital rape is unlawful. This is especially true in nations like India
where the societal structure diverges significantly from the constitutionally intended
morals. For instance, the widespread cultural practise of dowry in India led to the
introduction of the Dowry Prohibition Act in 1961.
Sati was formerly a common cultural practise that was later made illegal.
The claim that a crime is socially or culturally acceptable is not a justification for not
making it a crime. Since it denotes a society that is tolerant of crime, it should if
anything serve as a spur for its criminalization. Due of the "rape culture" that exists in
society, and particularly in situations of marital rape, this argument is particularly
pertinent when talking about rape.12

11
Rao, Raveena Kallakuru and Soni, Pradyumna, ‘Criminalisation of Marital Rape in India :
Understanding its Constitutional, Cultural and Legal Impact’ available at
file:///Users/user/Downloads/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
12
Ibid.
8
For these reasons, we contend that the fact that our "culture might not accept rape" does
not negate the fact that doing so would be unlawful. This ought to encourage the
legislature and the judiciary to act quickly, if anything.
The right of a woman or wife to live her life with human dignity is violated by marital
rape. According to Article 21 of the Indian Constitution, the right to life (a Fundamental
Right) includes the right to live with dignity. In numerous judgments, the Supreme
Court of India ruled that the crime of rape violates the victim's right to life and right to
a dignified existence. In the historic case of the Chairman, Railway Board v.
Chandrima Das, the Supreme Court of India ruled that rape is a crime against society
as a whole as well as an offence under the Indian Penal Code.
In the case of Bodhisattwa Gautam v. Subhra Chakraborty, the court determined that
rape is less of a sexual offence than an act of hostility committed with the intention of
corrupting and humiliating women. The marital exception principle thereby violates the
spouse's right to a dignified existence.
The Court further noted that any law that violates women's rights to live in dignity and
grants husbands the legal authority to force their wives into having sexual relations
against their will is in violation of the law.
The Indian constitution does not specifically address the right to privacy. However, the
Supreme Court has determined that the scope of Article 21 ensures a right to privacy
inherently.
The Supreme Court ruled in the case of State of Maharashtra v. Madhukar Narayan
that every woman has a right to her sexual privacy and that no one has the right to
invade that privacy whenever they like.
According to Articles 14 and 21 of the Indian Constitution, marital rape is also a
violation of a woman's basic rights. In this section, we make the case that a woman's
fundamental rights are violated since marital rape is not criminalised. Even if the crime
of marital rape takes place in a marriage's private realm, it is the duty of the State to
pierce that privacy. If the State does not intrude into this private space, a woman who
has been sexually assaulted by her husband is helpless.
However, a review of court rulings involving issues usually seen as being in the marital
and family spheres of privacy brings to light the judiciary's reluctance to include
fundamental rights in this private sector. In this imaginary private space, which it has
constructed, the judiciary has refused to uphold and apply fundamental rights. This has

9
had the result of putting to rest the argument that marital rape violates basic rights. This
is due to the fact that basic rights are not seen to have any place in the marital realm.13
The case now pending in the Delhi High Court contesting the legal exemption for
marital rape has focused attention on the problem of family-based sexual offences,
particularly marital rape. A judge's inquiry into whether reports of sexual assault by
married women and sex workers should be handled differently under the law drew some
unfavorable attention.
It was objected to because it compared marriage to prostitution. However, this is
incorrect, and the point that was likely intended to be conveyed was that law should
react to complaints from women in a same manner regardless of their profession or
position in society.
The only people who would want the exemption for marital rape to continue are those
who see marriage as a relationship that grants a spouse the legal right to impose
themselves on the other without permission.14
The difficulty in establishing marital rape is one of the issues with making it a crime.
Due to the nature of marriage, trials concerning this topic typically pit the husband's
word against the wife, which makes them challenging to prove in court. Another issue
is that criminalising marital rape leaves room for abuse. Such abuse hurts other women
who experience marital rape because people have less trust in their case, which hurts
them as well as their husbands who may be falsely accused of this.
If the exemption is repealed, wives will be free to abuse the legal system and accuse
their husbands of rape in order to resolve unrelated arguments. 75 The Dowry
Prohibition Act, the Protection of Women from Domestic Violence Act, and Section
498A of the Indian Penal Code, which makes it unlawful for a woman's husband or
members of his family to treat her cruelly on the physical or mental level, have all been
the targets of this argument.15
For instance, the Supreme Court stated in Arnesh Kumar v. State of Bihar that Section
498A is being utilised by irate women as a weapon rather than a shield.16 The
proponents of this position have continually failed to back up their statements with data.

13
Rao, Raveena Kallakuru and Soni, Pradyumna, ‘Criminalisation of Marital Rape in India :
Understanding its Constitutional, Cultural and Legal Impact’ available at
file:///Users/user/Downloads/11-1-Raveena-Rao-Kallakuru-Pradyumna-Soni.pdf
14
https://www.deccanherald.com/opinion/first-edit/marital-rape-is-rape-treat-it-as-crime-1072400.html
15
Saptarshi Mandal, The Impossibility of Marital Rape - Contestations Around Marriage, Sex,
Violence and the Law in Contemporary India, 29 AUSTL. FEMINIST STUD. J. 255, 256 (2014)
16
Arnesh Kumar v. State of Bihar, (2014) 9127 SCC (India)

10
 Chapter 4 – Judicial Approach

The history of marital rape in India is extremely extensive and intricate. The law against
marital rape had also been created and modified, but not totally. Marital rape is not
defined in any law or anyplace else; instead, it is only described by some writers and
political and legal theorists.
A husband cannot commit rape in the presence of his legitimate wife. There existed a
notion up to the 20th century that said that following marriage, her legal rights would
be assumed by her legitimate husband. According to this belief, if you get married, your
partner is not considered to have committed rape.
Some cultures believe that consent is not required for marriage; thus, if consent is not
required for marriage, then consent for sexual activity is likewise not required. In
certain societies where the bride price is paid, even the autonomy of the woman is being
sacrificed.
In the US, the wife's legal subjection to her husband was completely abolished in the
decision of Kirchberg v. Feenstra17. The court declared unconstitutional, the Louisiana
head and master legislation that allowed the husband complete control of the marital
estate.
The English common law has a significant influence on that specific tendency. In
Queen Empress v. Haree Mythee18, the court noted that in cases involving married
women, the law of rape does not apply between husband and wife after the age of 15,
and even if the wife is over 15, the husband has no right to disregard her physical safety,
for example, if the circumstances be such that intercourse is likely to result in death.
In this instance, the husband was found guilty under Section 338 of the Indian Penal
Code for rupturing his wife's vagina when she was just 11 years old, resulting in
bleeding that ultimately resulted in her death. In addition, in Emperor vs. Shahu
Mehrab19, the husband was found guilty of murdering his child-wife by engaging in
impulsive or careless sexual activity with her.
In State of Maharashtra vs. Madhukar Narayan Mandikar20, the Supreme Court made
reference to the right to bodily privacy. It was determined in this instance that a
prostitute had the right to reject sexual activity. Sad to hear that all stranger rapes are

17
450 U.S. 455 (1981)
18
4 (1891) ILR 18 Cal. 49
19
AIR 1917 Sind 42
20
AIR 1991 SC 207
11
now crimes and that all females, excluding wives, have the right to privacy over their
bodies, allowing them to decline sexual activity out of respect for their modesty or
under Section 377 IPC as unnatural offences.
The notion that rape inside marriage is impossible or that a woman's reputation for rape
may be saved by marrying the rapist appears to have been totally consigned to the
judiciary's convenience. The issue is that it is now widely believed that a marriage is
almost sacred and should be characterised by mutual respect and trust, not by forcing
the woman to submit to her husband's every desire, especially sexual ones. Being raped
by a family member who is known to you is significantly more painful than seeing it,
and it is even worse if you have to live with him.
Gobind v. State of Madhya Pradesh21 ("Gobind"), R Rajagopal v. State of Tamil Nadu22
("Rajagopal"), and People's Union for Civil Liberties v. Union of India23 ("PUCL"),
these latter rulings, which upheld the validity of a right to privacy that is guaranteed
by the constitution, were made by benches with less weight than those in M P Sharma
and Kharak Singh. According to the Companies Act, the Union government ordered an
investigation into the affairs of a company that was going through liquidation on the
grounds that it had made a concerted effort to embezzle its funds, hide the true nature
of its business from its shareholders, and engage in fraudulent activity and falsify
records. The company in question was also said to have engaged in these activities.
Records were obtained as a result of search warrants that were issued after offences
were reported. The argument was that the searches were unlawful under Article 19(1)(f)
and Article 20(3) of the Constitution because they infringed the petitioners' basic rights.
The earlier objection was turned down. Whether Article 20 was violated was the
question this Court was trying to answer (3). According to Article 20(3), no one accused
of a crime may be made to testify against himself.
In the case of Bodhisattwa Gautam v. Subhra Chakraborty24, the court ruled that rape
is unconstitutional because it violates the marital exception principle and gives the
spouse the right to force the wife to engage in sexual activity against her choice.

21
(1975) 2 SCC 148.
22
(1994) 6 SCC 632.
23
(1997) 1 SCC 301.
24
1996 SCC (1) 490
12
The Supreme Court of India, in the matter of Independent Thought v. Union of India25
read the Exception 2 to Section 375, of Indian Penal Code,1860 which now stands thus
altered -
“Sexual intercourse by a man with his wife, the wife not being less
than 18 years of age, is not rape” instead of (15years of age, is not
rape. “Parliament has extensively debated the issue of marital rape
and considered that it was not an offence of rape. Therefore, it
cannot be considered as a criminal offence.”26
The Supreme Court was unequivocal, however, that the judgement would not extend to
marital rape of adult women on one issue (hereinafter referred to as marital rape
simpliciter).
“We make it clear that we have refrained from making any observation with regard to
the marital rape of a woman who is 18 years of age and above since that issue is not
before us at all. Therefore we should not be understood to advert to that issue even
collaterally.”27
In no place does the Indian constitution define the right to privacy. But the Supreme
Court has noted in a number of judgments, including Kharak Singh v. State of Uttar
Pradesh28, Govind v. State of Madhya Pradesh29, and Neera Mathur v. Life Insurance
Corporation30, that the right to privacy is inherently guaranteed to the extent of Article
21.
In its most basic form, privacy permits each person to be left alone in their inviolable
core. However, the individual's ties with other members of society influence how
autonomous she is. These connections may and frequently do call into question one's
freedom of choice and autonomy. Aspects of social life that have an impact on an
individual's freedom are governed by the general presence of state and nonstate
institutions. Problems that already exist must be overcome. In terms of a constitutional
view of where liberty positions a person in the framework of a social order, new
difficulties must also be addressed.31

25
(2017) 10 SCC 800
26
Ibid.
27
Ibid.
28
1963 AIR 1295
29
1975 AIR 1378
30
1992 AIR 392
31
Das DPK and Tandon A, “A Judicial Approach on Marital Rape” Aegaeum Journal 359 available at
http://aegaeum.com/gallery/agm.j-3247.41-f.pdf

13
The Chhattisgarh High Court decided that sexual activity between a man and woman
who are lawfully wed is not rape even if it is done under duress or against the wife's will
in August 2021, clearing a man of the charge of marital rape. The Karnataka High Court
had stated that marriage is not a license to "unleash a violent beast" in March of this
year while hearing a case filed by a man seeking to dismiss allegations of rape by his
wife. The historic decision permitted the framing of rape allegations against a man
suspected of making his wife a "sex slave" via coercion. After hearing the man's appeal
against the Karnataka High Court, the Supreme Court rejected to postpone the court's
decision not to throw out the case of marital rape brought against him based on a
complaint by his wife.
A two-judge Delhi High Court panel recently rendered a split decision in a series of
petitions contesting the Indian Penal Code's provision for marital rape (IPC). A group
of four petitions contesting the validity of Section 375's exemption were being heard by
the court. The court heard a number of intervenors, including a men's rights
Organisation, in addition to the petitioners, who include the All India Democratic
Women's Association (AIDWA). Despite the court's divided decision, its intervention
shifts the needle in favour of removing the marital rape exception from the statute.
Additionally, the Karnataka High Court ruling that put a man on trial for marital rape
for the first time was recently rejected by the Supreme Court. The Supreme Court's
decision to not suspend the ruling shows that the higher judiciary is prepared to conduct
a thorough investigation into the proviso from the colonial era.

14
 Chapter 5 – Recommendations

It is clear that marital rape is a widespread problem in India, and a number of steps must
be implemented to effectively counteract its pervasiveness. The marital rape exemption
should be at the very least repealed, making marital rape a crime and thus eliminating
marriage as a defence to rape. Making marital rape a crime is just the first of many
necessary steps. There are still many economic, societal, and legal obstacles that need
to be removed in order to entirely abolish marital rape and give women who experience
sexual abuse in marriage an appropriate recourse.
It's necessary to offer gender-sensitivity training to a variety of professions, including
the judicial system and the police. Additionally, the State should offer facilities and safe
houses to help women flee abusive situations and give them access to the essential
support services. Last but not least, the State must establish a national strategy for
combating widespread stigma and prejudices towards women in general and married
women in particular.
First and foremost, it is crucial that the exemption for marital rape be completely
removed from the Indian Penal Code. Similar to this, the Code should expressly classify
marital rape as a crime, essentially ending the use of marriage as a defence to rape
accusations. Laws are passed to penalise antisocial behaviour, serve as a deterrence
against socially undesirable behaviour, and generally inform the public about the
common opinion on moral and social behaviour.
The State effectively communicates to society that forced conjugal interactions,
including violent ones, are socially acceptable behaviours by not criminalising such
behaviour and by offering marriage as an affirmative defence to rape accusations. 156
Additionally, it supports prejudices and stereotypes against married women, such as the
notion that marriage automatically implies consent and that when a woman enters a
marriage, she forfeits her physical autonomy.32
Second, the State must support effective police procedures. Unfavourable police tactics
are a significant barrier that deters women from first reporting assault. Another obstacle
for women who want to report sexual assault in marriage is that police officers have the
ability to decline to file cases. The State must create standard operating procedures for

32
Krina Patel, The Gap in Marital Rape Law in India: Advocating for Criminalization and Social
Change, 42 FORDHAM INT'L L.J. 1519 (2019).
Available at: https://ir.lawnet.fordham.edu/ilj/vol42/iss5/7
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the police in incidents of violence against women and girls. In order to ensure correct
handling of victims and witnesses, as well as effective investigations and case files,
gender-sensitive training needs to be required and made available.
In addition, the judiciary's hostile portrayal of past domestic violence instances where
the bench continually downplayed the gravity of marital rape has to be contested. By
giving judges sentencing guidelines for situations involving marital sexual assault, such
behaviours can be effectively stopped. Additionally, it is essential to teach judges on
gender-sensitive practises.
Furthermore, the State must make sure that women have access to crucial support
systems if it is to effectively prevent marital violence against women. Due to their
reliance on their husbands' income, many women, especially those living in rural parts
of India, do not report sexual assault to the police. They worry that without their spouses,
they won't have access to any other sources of assistance. As a result, the State need to
create widely dispersed, easily accessible crisis centres where female victims of rape
and abuse can find refuge, get medical and psychological care, get legal support, and
other essential support services.
Finally, the pervasive patriarchal attitudes and weak social and economic institutions
present across the nation may be blamed for the continuance of marital rape in India.
Due to the societal shame associated with rape victims in India as well as the criticism
on women who fail to "make their marriage work," women are less likely to report cases
of rape inside their marriage. As a result, overcoming pervasive stigma and gender
preconceptions is crucial in the battle against marital rape. It is crucial to inform the
public that marriage does not signify that a woman's legal and sexual independence have
ceased to exist.33

33
Committee on the Elimination of Discrimination Against Women, Concluding observations on the
combined fourth and fifth periodic reports of India, § 10(a), CEDAW/C/IND/CO/4-5 (July 18, 2014)
[hereinafter Concluding Observations].
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 Chapter 6 – Conclusion

The discussion of marital rape is essential to achieving real equality for married women,
who are otherwise restricted to their homes in terms of public and legal discourse. It is
vital to acknowledge that there is now a significant legal gap that undermines the
constitutional protections for women's equality and autonomy. There have been strong
political, legal, and cultural considerations against criminalization, as we have
repeatedly shown.
The soundness of these arguments, which are laced with ideas about the family,
marriage, and the place of women in society, has been rigorously examined. We have
demonstrated how each and every objection to criminalization lacks any basis in law.
We have contended that the exemption provision in Section 375 of the IPC is invalid in
its current form. This is so that it doesn't pass the Article 14 equality requirement.
Additionally, we have shown that there are no workable legal alternatives, and that
instead of focusing on alternatives, we should concentrate on criminalising it. We also
emphasised that just because our society does not support marital rape does not mean
that it should not be made a crime.
In light of all of this, we provide a framework for making marital rape a crime. First, we
suggest getting rid of the exception clause. Second, we suggest that it be made clear that
the accused's marital status with the lady will not be a factor in the defence. Third, we
suggest maintaining the current sentence guidelines. Fourth, we suggest making a few
changes to the Evidence Act so that it properly accounts for the difficulties in
prosecuting cases of marital rape.

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