marital rape

1. CHAPTER 2
MARITAL RAPE AND ITS EXEMPTIONS
INTRODUCTION
Historically, a man could not be prosecuted for raping his own wife. This inability to prosecute
was based on the common law definition of rape itself, which exempted husbands from criminal
liability. Since the late 1970 however, several states have partially or completely abolished the
common law marital rape exemption. Notably, the abolishment has been accomplished through
both legislative enactments and judicial decisions. Those seeking to completely eradicate the
marital rape exemption have not enjoyed success in every state. Today there are still a large
number of states which have not repealed the exemption totally, but have instead permitted a
partial exemption allowing a husband to be exempt from prosecution for "raping" his wife under
certain circumstances.
Truly, equality between men and women will never exist unless every state has completely
abolished the marital rape exemptions. This abolishment would give every woman, married or
unmarried the freedom to control her own body. The purpose is to encourage legislators and
those who influence them across the world, to complete the abolishment of marital rape
exemptions.
In 2012, the High Commissioner for Human Rights, Navi Pillay stated that:
“Women's human rights violations are often linked to their sexuality and reproductive roles. In
many countries, married women may not refuse to have sexual relations with their husbands, and
often do not say whether they use contraception. Ensuring that women have full autonomy over
their bodies is an important first step. towards achieving substantive equality between women
and men. Personal issues—such as when, how and with whom they choose to have sex, and
when, how and with whom they choose to have children—are at the heart of living a dignified
life.”

2. MEANING OF MARITAL RAPE
Section 375 of IPC, 18601 has defined the term 'Rape'. As per this definition, the following
constitutes rape-
1. Sexual intercourse with any woman without her will or consent( non-consensual sexual
intercourse)
2. Sexual intercourse with a girl less than 18 years with or without her consent (statutory
rape)
3. If a woman is less than 15 years then sexual intercourse by her husband with or without
her consent will constitute rape.
1 “375. Rape- A man is said to commit “rape” if he—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with
him or any other person; or
b. inserts, to any extent, 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
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus,urethra of a woman or makes her to do so with him or any other person,
under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent,when her consent has been obtained by putting her or any person in whom s he is
interested, in fear of death or of hurt.
Fourthly.—With her consent,when the man knows that he is not her husband and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent,by reason of unsoundness ofmind or
intoxication or the administration by him personally or through anotherof any stupefying or unwholesome
substance,she is unable to understand the nature and consequences ofthat to which she gives consent.
Sixthly.—With or without her consent,when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation 1.—For the purposes ofthis section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocalvoluntary agreement when the woman by words, gestures or any
form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years
of age, is not rape.

3. 4. Exception 2 appended to sec 375 lays down an exception for sexual intercourse by the
husband with his wife between 15 years and 18 years.
5. Sexual intercourse by husband with wife even though all the ingredients of section 375
are being fulfilled is not rape. (Marital Rape)
The last two circumstances stated above are those in which the offender is not liable to be
penalized for the offence of rape although it satisfies the conditions laid down in sec 375 IPC just
because the victim and the offender are related through matrimonial ties i.e., rape within the
boundary of marriage by husband of his wife also known as marital rape.
The term 'marital rape' is not defined by our legislature as sexual intercourse by husband with his
wife without her consent is not considered as offence in the Indian legal system. However, on
perusal of definition of rape given under section 375 IPC 'Marital Rape' can be defined as non-
consensual sexual intercourse by husband with his wife; it may involve actual use of force, threat
of force or by resorting to physical violence.
Section 375 of IPC lays down that "sexual intercourse by a man with a girl under the age of 18
years (with or without her consent) constitutes statutory rape. To analyze the concept of statutory
rape we have to know on what basis such distinct offence is made. It is well known fact that a
minor is considered by law an incapable entity so as to decide for himself or herself what is in
his/her best interest. So, law has taken this responsibility on its own shoulders. Legislature has
enacted various laws and from the time of Privy Council till now the courts in India are also
taking care of the interest of minor. The term 'child/minor' is defined in various statutes; in case
of a girl every statute deems a girl under 18 years as a child.2 The law is duty bound to protect
2 The Child Marriage Restraint Act, 1929 was repealed by the Prohibition of Child Marriage Act, 2006 and this Act
defines a child as follows: “2. Definitions.—In this Act, unless the context otherwise requires,— (e) “child” means a
person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years
of age.
Under the Protection of Women from Domestic Violence Act, 2005, a child has been defined under Section 2(b) to
mean any person below the age of 18 years; Section 3 of the Majority Act, 1875 provides that a person shall attain
the age of majority on completing the age of 18 years and not before.” It would, however, be pertinent to mention
that Section 2 of the Indian Majority Act contains a non-obstante clause excluding laws relating to marriage,
divorce, dower and adoption from the provisions of that Act.
Under Section 4(i) of the Guardians and Wards Act, 1890,“a minor has been defined to mean a person,who has not
attained majority under the Majority Act”.

4. the interest of a child under 18 years of age. Hence sec 375 sixthly penalizes sexual intercourse
with a girl who is below 18 years of But by virtue of exception 2 to sec 375 IPC, if a girl child
between 15 and 18 years of age is married, her husband can have consensual or non-consensual
intercourse with her, without the fear of being prosecuted for the offence of rape, just because
such minor child happens to be his wedded wife. Such girl child loses her right to bodily
integrity and to refuse to have sexual intercourse with her husband because IPC takes away this
right from her.
It is often argued that such provision is kept on our statute books so that the institution of
marriage can be saved. But the people who give this argument does not understand the fact that
institution of marriage cannot be disturbed just by not giving the right to the husband to have
sexual intercourse with his wife without her consent. The bond of marriage become strong when
both the partners have equality in making the choices of their personal lives. If one partner is
given preference over the other then the institution of marriage becomes weak. This can
definitely lead to disturbing the institution of marriage. This justification in itself sounds absurd
as on the one hand law says that a child under the age of 18 years is incapable of giving consent
to sexual intercourse in case she is unmarried, so needs protection at the hands of law; hence the
law penalizes such act by virtue of section 375 sixthly IPC and on the other hand it says if such
girl child is married then she acquires that level of maturity that she is capable of giving consent
to sexual intercourse with her husband. No objective seems to have achieved by keeping such a
retrogressive provision on our statute books per-se; just because a girl child between 15 and 18
years of age is married, she does not cease to be a child or attain the capacity to consent for
sexual intercourse.. Hence, "Exception 2 to sec 375 of IPC is not only arbitrary but is also
discriminatory and contrary to the beneficial intent of Article 15 (3) of the Constitution".
As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband
after entering into marital relations. While unwilling sexual contact between a husband and a
Under Section 4(a) of the Hindu Minority and Guardianship Act, 1956 a minor has been defined to mean “a person
who has not completed the age of 18 years”.
Under the Representation of the People Act, 1951, “a person is entitled to vote only after he attains the age of 18
years”

5. wife is recognized as a criminal offense in almost every country of the world. India, is one of the
thirty-six countries that still have not criminalized marital rape.3
The SC and various HC are currently flooded with writ petitions challenging the constitutionality
of this exception, and in a recent landmark judgment, the SC criminalized unwilling sexual
contact with a wife between fifteen and eighteen years of age.4 This judgment has in turn led to
an increase in other writs challenging the constitutionality of exception 2 as a whole. In light of
ongoing litigation, this dissertation critically analyses the constitutionality of exception 2.
VIOLATIONOF ARTICLE 14 OF INDIAN CONSTITUTION
Article 14 ensures that : "the state shall not deny to any person equality before law and equal
protection of laws within the territory of India".5 Although the Constitution guarantees equality
to all, Indian criminal law discriminates against female victims who have been raped by their
own husbands.
At the time the IPC was drafted in 1860, a married woman was not considered an independent
legal entity. Rather, she was considered to be the chattel of her husband.6 As a result, she did not
possess many of the rights now guaranteed to her as an independent legal entity, including the
right to file a complaint against another under her own identity.7 Exception 2 which essentially
exempts actions perpetrated by husbands against their wives from being considered acts of rape,
is largely influenced by and derived from this already existing doctrine of merging the woman's
identity with that of her husband.
The roots of this doctrine can be traced to British colonial rule in the Victorian era.8 India was a
British colony during the 19th century. All Indian laws enacted at this time were deeply
3 Marital Rape in India: 36 countrieswhere marital rape is not a crime, India Today, Mar. 12, 2016.
4 Independent Thought v. Union of India, (2013) 382 SCC (2017) (India)
5 Constitution of India, Article. 14.
6 To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6) Harv. L. Rev. 1255,
1256 (1986).
7 ibid
8 Jill Elain Hasday, Consent and Contest:A Legal History of Marital Rape, 88 Calif. L. Rev. 1373 (2000).

6. influenced by English laws and Victorian norms. The marital exception to the IPC's definition of
rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and
women as equal, did not allow married women to own property, and merged the identities of
husband and wife under the "DOCTRINE OF COVERTURE".
But times have changed. Indian law now affords husbands and wives separate and independent
legal identities, and much jurisprudence in the modern era is explicitly concerned with the
protection of women. This concern is evident in the plethora of statutes intended to protect
women from violence and harassment that have been passed since the turn of the century,
including "The Protection of Women from Domestic Violence Act" and the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redrssal) Act".9
Exception 2 violates the right to equality enshrined in Article 14 insofar as it discriminates
against married women by denying them equal protection from rape and sexual harassment. The
exception creates two classes of women bases on their marital status and immunizes actions
perpetrated by men against their wives. In doing so, the exception makes possible the
victimization of married women for no reason other than their marital status while protecting
unmarried women from those same acts.
Exception 2 distinction between married and unmarried women also violates Article 14 in so far
as the classification created has no rational relation to the underlying purpose of the statute. In
Budhan Choudhary V. State of Bihar10 and State of West Bengal v. Anwar Ali Sarkar11, the SC
held that any classification under article 14 is subject to a reasonableness test that can be passed
only if the classification has some rational nexus to the objective that the act seeks to achieve.
But exception 2 frustrates the purpose of section 375: to protect women and punish those who
engage in the inhumane activity of rape. Exempting husbands from punishments is entirely
contradictory to that objective. Put simply. the consequences of rape are the same either a
woman is married or unmarried. Moreover, married women may actually find it more difficult to
escape abusive conditions at home because they are women may actually find it more difficult to
9 Protection of Women from Domestic Violence Act, 2005, No. 43, Acts of Parliament, 2005 (India); Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, No. 14, Acts of Parliament,
2013 (India).
10 Budhan v. State of Bihar, AIR (1955) SC 191 (India)
11 State of West Bengal v. Anwar Ali Sarkar,AIR (1952) SC 75 (India)

7. escape abusive conditions at home because they are legally and financially tied to their husbands.
In reality, exception 2 encourages husbands to forcefully enter into sexual intercourse with their
wives, as they know that their acts are not discouraged or penalized by law. Because no rational
nexus can be deciphered between the classification created by the exception and the underlying
objective of the act, it does not satisfy the test of reasonableness, and thus violates Article 14 of
the Constitution of India.
VIOLATIONOF ARTICLE 21
Exception 2 is also a violation of Article 21 of the Indian Constitution.12 Article 21 states that
"no person shall be denied of his life and personal liberty except according to the procedure
established by law". The SC has interpreted this clause in various judgments to extend beyond
the purely literal guarantee to life and liberty. Instead, it was held that the rights enshrined in
Article 21 include the right to health, privacy, dignity, safe living conditions, and safe
environment among others.
In recent years, courts have began to acknowledge a right to abstain from sexual intercourse and
to be free of unwanted sexual activity in these broader rights to lfe and personal liberty. In The
State of Karnataka V. Krishnappa, the SC held that "sexual violence apart from being a
dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female.13 In
the same judgment, it held that non-consensual sexual intercourse amounts to physical and
sexual violence. Later in, Suchita Srivastava V. Chandigarh Administration, the SC equated the
right to make choices related to sexual activity with rights to personal liberty, privacy, dignity,
and bodily integrity under Article 21 of the Constitution.14
Most recently the SC has explicitly recognized article 21 a right to make choices regarding
intimate relations. in Justice K.S.Puttuswamy (Retd.) V. Union of India, the SC recognized the
right to privacy as a fundamental right of all citizens and held that the right to privacy includes
12 Constitution of India, Article. 21
13 The State of Karnataka v.Krishnappa,(2000) 4 SCC 75 (India)
14 Suchita Srivastava v. Chandigarh Administration,(2008) 14 SCR 989 (India)

8. "decisional privacy reflected by an ability to make intimate decisions primarily consisting of
one's sexual or procreative nature and decisions in respect of intimate relations".15 Forced sexual
cohabitation is a violation of that fundamental right. 16 The above rulings do not distinguish
between the rights of married women and unmarried women and there is no contrary ruling
stating that the individual's right to a privacy is lost by marital association. Thus, the SC has
recognized the right to abstain from sexual activity for all women, irrespective of their marital
status, as a fundamental right conferred by article 21 of The Constitution.
Additionally, Exception 2 violates Article 21 right to live a healthy and dignified life. As
mentioned above, it is well settled that the "right to life" envisaged in article 21 is not mere a
right to exist. For example, there can be no dispute that every citizen of India has the right to
receive healthcare or that the state is required to provide for the health of its constituents. 17 In
this vein. the courts have repeatedly held that the "right to life" encompasses a right to live with
human dignity.18 Yet the very existence of exception 2, which fails to deter husbands from
mental health of women and undermines their ability to live with dignity.
The above conclusions clearly reflect that exception 2 to section 375 of the IPC is an
infringement of article 114 and 21 of the Constitution. It is time that Indian jurisprudence
understands the inhumane nature of this provision of law and strikes it down.
15 Justice K.S. Puttuswamy (Retd.) v. Union of India, (2017) AIR 2017 SC 4161 (India)
16 as “Right to abstain” from sexual intercourse is a long recognized principle of Indian Constitutional jurisprudence
. Govind v. State of M.P, AIR (1975) SC 1378 (India); Kharak Singh v. State of U.P, (1963) AIR SC 1295 (India)
17 Regional Director ESI Corpn.v. Francis de Costa, 1993 Supp (4) SCC 100; 5 D.D. Basu, Commentary on the
Constitution of India, 4711 (LexisNexis 2015).
18 C.E.S.C. Ltd. v. Subhash Chandra,(1992) 1 SCC 441 (India)

9. FORMS OF MARITAL RAPE
Marital Rape can be divided into two categories namely, Non- Physical Sexual Coercion and
Threatened or Forced Sex. In Non- Physical Sexual Coercion the perpetrators of marital rape use
social or normative coercion which invokes belief in 'Wife's duty' and the responsibility of a wife
to satisfy her husband19. As identified by the legal scholars, the following three forms of marital
rape are generally prevalent according to further categorization of threatened or forced form of
marital rape20.
BATTERING RAPE:
In battering rape, women experience both physical and sexual brutality in the relationship and
they experience this violence in different ways. some are battered during the sexual violence. or
the rape may follow a physically violent episode where the husband wants to have intercourse
against her will. The majority of marital rape victims fall under this category.
FORCE ONLY RAPE:
In this the husband use only that amount of force which is necessary to coerce their wives.
Battering may not be characteristics of these relationship. the assaults are typically after the
woman has refused sexual intercourse.
OBSESSIVE RAPE:
Other women experience what has been labeled sadistic or obsessive rape. These assaults involve
torture and or perverse , sexual acts and are often physically violent.
19 Prof. Kshitij Naikade & Dr. Garima Pal, Issues and Challenges Related to Marital Rape in India, “7 IJHSSI 58-69
(2018)
20 Udisha Ghosh, Marital Rape: The Need for Criminalisation in India, Academike, (February 4, 2015),
https://www.lawctopus.com/academike/marital-rape-need-criminalisation-india/

10. LEGAL PROVISIONOF MARITAL RAPEUNDER INDIAN PENAL CODE
Following are the instances which make marital rape a criminal offence in India21.
 According to section 376-B22 if a man has sexual intercourse with his separated wife
without her consent, then he will be liable for rape and can be punished accordingly. This
is one instance where the law protects a judicially separated wife and recognizes it as an
instance of marital rape if a man indulges in sexual intercourse without the consent of the
wife.
 Exception 2 of Section 375 of IPC protects the wife under the age of 15 years from
marital rape. The age has now been increased to 18 years23.
To sum up, only two classification of married women are covered under the rape laws:
 Those having age less than 18 years.
 Those who are legally separated from their husbands.
All the other married women have to resort to section 498-A which criminalizes marital rape as
cruelty by her husband.
Recently, a Public Interest Litigation24 (hereinafter referred as PIL) has been filed in the court
challenging section 9 of the Hindu Marriage Act25 (hereinafter referred as HMA) on the ground
that it forces an estranged couple to resume their marital relations. A partner can force another
partner who is living separately to stay together by moving to the court and seeking restitution of
conjugal rights under section 9. This is seen as another reason which can lead to rape within
21 Dr. Bhavish Gupta1 & Dr. Meenu Gupta: Marital Rape: - Current Legal Framework in India and the Need for
Change, GJLS 1(1), 2013
22 Indian penal code, 1860, section 376B
23 Independent Thought v.Union of India, SCC Online SC 1222
24 Dhananjaya Mahapatra, Can estranged couples be forced to cohabit, asks PIL, (March 6, 2019, 1.40 IST),
https://timesofindia.indiatimes.com/india/can-estranged-couples-be-forced-to-cohabit-
askspil/articleshow/68278188.cms
25 The Hindu Marriage Act, 1955, section 9

11. marriage. The court has agreed to reconsider the issue and has appointed a three- judge bench to
look into the plea against this law26.
CONCEPT OF CONSENT
In Indian patriarchal system the condition of woman is worse. We still follow the 17th century
Common Law Principles when women were considered nothing more than a chattel, they were
their father's property before marriage and after marriage the husband was considered their
owner; once they are married they had no right to say 'NO' to their husband if he wants to enjoy
her company It comes forth from the statement of Sir Matthew Hale Chief Justice in England
that: "The husband cannot be guilty of rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her
husband which she cannot retract." 27
Concept is the legal lone which separates a rape from a sexual intercourse, but it is sad to see that
once a woman is married, her consent naturally presumed for having sexual intercourse and she
cannot retract from it. India has always considered men as superior to women and therefore she
has always been identified by the name of her husband.
There are instances where the consent of a woman is achieved through cheating, deceit, threat,
fraud, etc. In such cases it is even more difficult to prove a case of rape. Such cases of rape are
another challenge falling within the domain of marital rape. Also, there is still no clear boundary
between "submission" and "voluntary consent" even if it is clear that they both are given by the
victim during totally different state of mind. According to the Indian context, unless there is
presence of injury in the rape cases it is presumed that the consent was provided.
26 Supreme Court to look into plea against laws for restitution of conjugal rights, Indian Express, (March 6, 2019
5:14 am)
27 Matthew Hale, “History of the Pleas of the Crown”, 1 Hale PC 629 (1736). See further, S. Fredman, Women and
the Law 55-57 (OUP, 1997).

12. It is very important that consent should be differentiated from submission. There have been
cases28 where Supreme Court held the accused not guilty because of the reason that there was no
injury on the woman's body. The court in this case failed to differentiate between submission and
consent. However, an amendment was made in the IPC and the definition of consent was added
in the Explanation 2 which stated that "consent means an unequivocal voluntary agreement when
the woman by words, gestures or any other form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act: Provided that a woman who
does not physically resist to the act of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity".29
The explanation clearly distinguished between submission and consent by stating that just
because the woman did not resist it shall not be presumed that she consented to the act. In case of
State of Maharashtra V. Madhukar Narayan Mardiakar30 the court held that prostitutes also have
a right to privacy when he likes to. Explicit consent in sexual intercourse has been given
importance in these cases also. Explicit consent in sexual intercourse has been given importance
in these cases also. It is said to notice that only in cases of marriage the consent is presumed and
a man is not held liable for raping her wife.
In marital rape, consent from the wife for sexual intercourse is automatically taken as always
implied, whereas it should be left for the wife to decide whether she wants to provide her
consent for the same or not. Thus, consent is very important especially in a married life and it
must always be given explicitly.
28 Tukaram vs St. of Maharashtra, 1979 SC 185
29 Indian Penal Code, 1860, Section 375, exception (2)
30 State of Maharashtra v. Madhukar Narayan Mardiakar, 1991 (1) SLR SC 140: AIR 1991 SC 207

13. CONCLUSION
Over the last two decades, a huge amount of legislation has been enacted activity of immunity
from marital rape. The nationwide campaign for that the complete abolition of immunity from
marital rape has made great strides an attempt to legitimately change the sexist and archaic
ideology that is a woman her husband’s property, and that when a woman marries, she agrees
unconditional sexual intercourse with her husband. This idea is the origin of public law in the
17th century and still exists today.
Legislators should prioritize the marital exemption until it is completely ended in all states.
Partial exemption states, should follow the lead from Other states that have amended their
statutes and should follow the directive illustration of the complete abolition of marital
exemptions.