2. Marriage : a formal union of a man and
woman by which they become husband and
wife.
Rape: Forcible seizure or the ravishment of a
woman without her consent by force, fear or
fraud.
Marital Rape: Unwanted intercourse by a man
on his wife obtained by force or physical
violence or when she is unable to give
consent.
3. Physical Effects: Injuries to private organs,
soreness, bruising, torn muscles, fatigue,
vomiting, broken bones, bloody noses,
wounds and gynecological problems like
miscarriages, infertility, bladder infections,
etc.
Psychological Effects: Anxiety, fear, shock,
depression, flashbacks, sexual dysfunction,
sleep problems, disordered eating, suicidal
tendencies, etc.
4. Based on the notion of “irrevocable implied
consent” – once a woman is married to a
man, there is an implied consent to sexual
intercourse which is irrevocable in nature.
Woman considered to be property of her
husband.
5. Irrevocable Consent Argument: Implied
consent of wife by way of their mutual
matrimonial consent.
Blackstone’s Common Law Unity Doctrine:
Husband and wife after marriage unite into a
single entity and husband holds the joint
ownership.
Property Rights Argument: Women
considered to be property of their father
before marriage and husband after marriage.
6. Marriage Preservation Theory: Marriage is an
important institution of the society and
conjugal obligations to be fulfilled by both
the parties to marriage.
No less/harm Argument: Non-consensual sex
with husband better than non-consensual sex
with a stranger.
Privacy Argument: Prosecuting husbands for
marital rape infringes marital privacy.
Probability of Misuse Argument: Husbands
being subjected to false charges by their
wives.
7. S. 375 of IPC defines rape and various
instances of rape.
S. 376 provides punishment for rape.
Husband can be criminally prosecuted for
marital rape as under-
1) Wife( 12-15yrs), imprisonment upto 2 yrs
or fine or both.
2) Wife( below 12 yrs), imprisonment not less
than 7 yrs, may extend to life or 10 yrs and
fine.
8. 3) Judicially separated wife, imprisonment
upto 2 yrs and fine.
4) Wife above 15 yrs, not punishable.
Protection of Women from Domestic Violence
Act, 2005- if a woman has undergone marital
rape, she can go to the court and obtain
judicial separation from her husband.
42nd Law Commission Report suggested that
marital rape should be criminalized.
Justice Verma Committee also constituted in
2013 and made recommendations on marital
rape.
9. Art. 14- equal protection of the law. S. 375 of
the IPC makes a classification in terms of an
exemption that does not regard a forceful
sexual intercourse within a marriage as rape.
Art. 21- Life is “sumthing more then mere
animal existence” ( Munn v. Illinois). It
violates right to privacy, right to bodily self-
determination and right to good health which
forms an integral part of Art. 21.
Marital rape violates the right to live with
human dignity.
10. Right to Privacy includes the right to be left
alone. Any form of force sexual intercourse
violates the right to privacy. ( St. of Maharashtra
v. Madhkar Narayan)
Right to bodily self-determination is based on
the belief that the individual is the ultimate
decision maker in matters closely associated with
his/her body or well-being. Consent to sex is
one of the most intimate and personal choice
that a woman reserves for herself.
Marital rape exemption doctrine violates the right
to good health of a victim as it causes physical
and psychological harm in the process.
11. Queen Empress v. Haree Mythee: Even if the wife
is above the age of 15 yrs., husband has no right
to disregard her physical safety.
Emperor v. Shahu Mahrab: Husband convicted
u/s. 304A of IPC for causing death of his child
wife by rash/ negligent act of sexual intercourse.
Sree Kumar v. Pearly Karun: Dispute of divorce
between the parties. Settlement was reached and
parties agreed to reside together. Wife subjected
to sexual intercourse against her will. Husband
not held guilty for raping his wife even if he was
de facto guilty of having done so.
12. Women constitute half of the society’s
population which gives rise to the other half.
Women still continues to be victimized by
men and society.
Marital rape should be criminalized in India.
Even though it is prevalent in India, it is
hidden behind the curtains of marriage.
Several states such as Turkey, Japan,
Australia, Thailand, China, South Africa etc.
have recognized marital rape as an offence.
13. In 2006, marital rape was considered as an
offence punishable under the criminal law in at
least 100 countries and India is not one of them.
Various legislations and enactments passed in
India regarding violence against women in her
own house like dowry, cruelty, domestic violence
and female infanticide but not marital rape.
Nobody has a right to force his will upon any
other person.
No justification in viewing non-consensual sex
b/w married couples as different from those with
strangers.
