The Exception To Rape: Critical Analysis Of Marital Rape In India With Reference To International Obligations

I say nothing, not one word, from beginning to end, and neither does he. If it were lawful for a  woman to hate her husband, I would hate him as a rapist. 

Philippa Gregory, The Red Queen (The Plantagenet and Tudor Novels) 

Introduction 

Marriage is considered to be a sacrament in almost every religion.¹ On the other hand, Rape is  one of the deplorable crimes that can be done by a human. Rape is thus not only a crime against  the person of a woman (victim), it is a crime against the entire society.²It is preposterous to use  both ‘Marriage’ and ‘Rape’ in the same paragraph, the former is considered heavenly and latter  is demonic. The modern legal systems regard ‘consent’ as the basis of rape, immaterial of the  relations between accused and the victim. The question arises whether a husband can force her  wife for sexual relations on his whims, when there is no consent given by wife. The Courts in  India have held that “Marriage without sex is an anathema. Sex is the foundation of marriage.³ A  wife refusing to matrimonial intercourse with her husband amounts to cruelty and is a ground for  

* Advocate, Aligarh, Uttar Pradesh 

**Student, Third Year, BA.LL.B. , Department of Law, Aligarh Muslim University 

¹A. L. V. R. S. T. Veerappa Chettiar vs S. Michael, AIR 1963 SC 933; Anees Begum vs Mohammad Istafa (1933) 55  Al 743; see also, J Witte and J.A Nichols, More than a Mere Contract: Marriage as a Contract and Covenant in  Law and Theology, U. St. Thomas LJ, 5, (2008) at pp.595 

²Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922, Para 10 

³Vinita Saxena Vs Pankaj Pandit, (2006)3 SCC 778.

divorce.⁴In India, there is no recognition to marital rape and husbands receive marital immunity. In the age of human rights and equality, India follow the Victorian and commonwealth position  of marital rape till date, though the common law principle has been abolished by the United  Kingdom and other nations. India, being an English Colony, the majority of the laws by enlarge  are based upon common law of England. Lord Macaulay drafted Indian Penal code, 1860 with  English precedents and doctrines like doctrine of coverture and doctrine of implied consent were rooted in the philosophy of English legal jurisprudence. Coverture means the rights of the wife  subsumes into husband after marriage. During the marriage, the legal existence of the wife is  suspended under protection of the husband and she performs everything.⁵ The doctrine of coverture  has been diluted to an extent but the legal authority which justifies marital rapes is the doctrine  of implied consent. 

The doctrine of implied consent was given by Sir Mathew Hale, Chief Justice of the King’s  Bench in 17^th century that once wife enters into marriage there is an implied irrevocable consent  to sex,⁶: “For 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 up herself in this kind  unto her husband which she cannot retract.” 

Sir Mathew Hale’s statement without any precedents became a legal principle in all the  commonwealth and including USA.⁷ This evolved the concept of Marital Immunity that a  husband cannot be guilty of rape against his wife.  

India’s recent position 

Though, centuries have passed and the legal systems have evolved throughout the globe and  marital immunity still remains constitutional in India. Recently, the Parliament and the Supreme  

⁴Prakash Kishore vs Smt.Putul Devi; AIR 1992 SC 2004; Rita v.Balkishan Nijhawan, AIR 1973 Del. 200. ⁵WILLIAM BLACKSTONE, COMMENTARIES,(1),*442; see also, Claudia Zaher, When a Woman’s Marital Status  Determined Her Legal Status: A Research Guide on the Common Law Doctrine of Coverture, Law Libr. J., 94, pp.459- 800. Available at- http://people.virginia.edu/~jdk3t/ZaherWMS.pdf (Last accessed 5^th Feb 2018) ⁶M. HALE, PLEAS OF THE CROWN, 629 (1847) 

⁷Maria Pracher, The Marital Rape Exemption: A Violation of a Woman’s Right of Privacy, 11 Golden Gate U. L. Rev.  (1981), Available at- https://digitalcommons.law.ggu.edu/ggulrev/vol11/iss3/1 (Last accessed 5^th Feb 2018)

Court both had the opportunity to reconsider the law relating to marital rape under section 375 of  Indian Penal Code, 1860, exception 2.⁸ 

Menaka Gandhi, the Minister for Women & Child Development, said: “It is considered that the  concept of marital rape as understood internationally cannot be suitably applied in the Indian  context”⁹. The Indian Parliament gave arguments of Indian traditions and culture, protection of  institution of marriage, and the misuse of prospective law without considering the constitutional  merits and International obligations. The Apex Court had the opportunity to make exception 2 of  section 375 of India Penal Code as unconstitutional in Independent Thought v. Union of  India.¹⁰ However, the Apex Court avoided going into the constitutional merits. 

The most difficult part in relation to marital rapes in India is that they go unreported and there is  no proper mechanism to report such cases and accumulate data. There are few surveys which  draw an obscure picture that is prevalent in India and around the world. In United Nations  Population Fund¹¹, it was found that 75% (more than 2/3^rd) of married women (15-49 years)  in India are victims of marital rape. In 2005-2006, the National Family Health Survey recorded  that the most common source of violence to women were spouses. And, only 1 out of 4 women would seek help for violence and very less likely for sexual violence than physical violence.¹²  The sexual violence is rooted in our culture where the families of wife often condone such  incidents.  

In 2013, a United Nations survey found that around 2500 men out of 10000 in six Asia Pacific  countries (including India) admitted to rape a female partner. And, they are entitled to sexual  relations even without the consent of their partner.¹³ The UN Women Global Database reported  

⁸The SC has now held that a marital rape of minor is rape, in Independent Thought v. Union of India, W.P. (C) No.  382 of 2013, decided on October 11, 2017, in Para 88 of the judgment has reduced Exception 2 to Section 375 IPC:- “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”. ⁹Hindustan Times, Debate Rages On Over Criminalising Marital Rape In India, Mar 17, 2016 19:58 IST, available at  https://www.hindustantimes.com/india/debate-rages-on-over-criminalising-marital-rape-in-india/story kaoYQcBGkoaRGGpt4MdZ5H.html (Last accessed 5^th Feb 2018) 

¹⁰Supra note 8 

¹¹United Nations Population Fund and the International Center for Research on Women (2014) ¹²National Family Health Survey 3 – Domestic Violence (2005-06) available at  

https://dhsprogram.com/pubs/pdf/frind3/frind3-vol1andvol2.pdf (Last accessed 5^th Feb 2018) ¹³United Nations Development Programme, UN survey of 10,000 men in Asia and the Pacific reveals why  some men use violence against women and girls, (2013),available at  

http://www.undp.org/content/undp/en/home/news-centre/news/2013/09/10/un-survey-of-10-000-men-

that 37 per cent women experienced physical/sexual violence by their partners at least for once in  their life time.¹⁴ The data is representational and could be higher than the actual data because of  various reasons including social stigmas, non-assessment of remote areas, cultural affiliation to  sexual violence, denial to accept incidents of sexual violence before strangers etc. There is a dire  need to create a mechanism to report marital rape cases in India for at least assessing the present  scenario. 

Constitutional Perspective 

It is the fundamental duty of every man to renounce practices derogatory to the dignity of  women.¹⁵ The Crime of rape is an assault upon the human rights of the victim. It is an attack on  her individuality, flowing from ar. 14 and ar. 21, the “Fon Juris” of our constitution.¹⁶ Equality  has been considered as the basic feature of our constitution.¹⁷ The Preamble, article 14 and article 15 talk about the notions that a person is entitled to be treated with equality and  guaranteed equal protection of laws. Though, the letters of law fade when there is a discourse on  matrimonial life and it has been expressed that the constitutional notions ought not to be  introduced in matrimonial life calling them a bull in a china shop.¹⁸ 

The Courts in India have avoided to discuss marital rape on merits and touchstone of our  constitution. Recently, the judgments have shown a pessimist outlook towards the issue, for  instance, the Fast track Court of New Delhi, Dwarka, held that marital sex even if forcible is not  considered as rape¹⁹. The Supreme Court of India had an opportunity to rectify and settle the  issue. Though, the apex court held that sex with minor wife is rape, but with a major wife it is  not. The Court observed that it deliberately avoided to go into the constitutional validity of  

in-asia-and-the-pacific-reveals-why-some-men-use-violence-against-women-and-girls-.html (Last  accessed 5^th Feb 2018) 

¹⁴Facts and figures: Ending violence against women various forms of violence, available at:  http://www.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures (Last accessed 5^th Feb  2018) 

¹⁵Article 51(A) (e) of Constitution of India 

¹⁶Prahlad v. State of Haryana, 2015 (8) SCC 688, at para 17 

¹⁷Indira Nehru Gandhi vs. Raj Narain, A.I.R. 1975 SC 2299  

¹⁸Harvinder Kaur v Harminder Singh, AIR 1984 Del 66 (the judgment of Del. HC uphold the constitutional validity  of sec 9 of Hindu Marriage Act, 1955 and was approved by SC in Saroj Rani v. S.K Chadda, AIR 1984 SC 1562 ¹⁹State v. Vikash, Special Fast Track Court, Dwarka Court, New Delhi, SC No 1/14,availableathttp://www.livelaw.in/marital sex-even-forcible-rape-delhi-court-read-judgment-close-look-law-relating-marital-rape-india/ (Last accessed 5^th Feb 2018)

marital rape, observing that 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.²⁰ 

Whether a Reasonable Classification? 

It is apparent that the discrimination does not exist between a man and a woman, but it’s a case  where a wife is subject to violence by his man and discriminated by unmarried women itself.  Where unmarried women can refuge to justice, but law turns a blind fold against a married  woman calling it a matter of a conjugal right. It is very difficult to accept the classification of  married woman and unmarried woman under section 375 of Indian penal code. Apparently, a  female spouse of a live in relationship can have recourse to rape law²¹ and on the contrary a  married woman cannot. With such arbitrary discrimination, a matrimonial relationship seems to  be in a disadvantageous position for a victim. 

Further, the policy of classification has been based upon another argument that such interference  would destabilize the institution of marriage. The legislature and judiciary seem to be overly  emphasizing on protection of the institution of marriage at the expense of human rights and  fundamental rights. The Supreme Court while deciding child marital rape observed that  “marriage is personal and not institutional” ²² Though, the context was relating to minor marital  rape but the same applies to a case of major marital victim. Marriage is not only sacred but a  personal affair too. It involves autonomy and mutual consent between parties. The New York  Court of Appeals noted that “a state arguably has no interest in protecting marital privacy or  promoting marital reconciliation where a marriage involves domestic violence and where the  marriage has decayed to a point where the sexual relations of the spouses are no longer  consensual and sexual abuse has occurred.²³” 

Another basis of classification has been made that there will be legislative interference into  matrimonial life by the criminal prosecution. This, argument, however seems not true, the  

²⁰See, Supra note 8  

²¹Anil Dutt Sharma v Union of India, (2015). No. 1045/2015, Del HC 

²²See, Supra note 8 

²³People vs Liberta ,64 N.Y.2d 152, 474 N.E.2d 567

The concept of criminal prosecution by a wife against husband already exists in Indian Penal Code. A  wife can prosecute her husband for sexual assaults,²⁴ simple hurt²⁵, sodomy²⁶etc. The privacy  being a fundamental right, the institution of marriage should not be a matter of cautious  legislative policy and it should be left upon a wife that she can prosecute her husband for marital  rape. This might act as a safety valve, the criminal remedy should be there but the matter of  prosecution should be left upon the wife alone.  

Justice Vis A Vis Misuse 

It is one of the reasons that the law of marital rape can be misused by women, legally that cannot  be a ground to avoid International obligations of a state. The legislature can create a better  mechanism for restricting frivolous rape prosecution altogether. Already, there are sufficient  remedies for restricting frivolous prosecutions and testimonies i.e. Perjury and malicious  prosecution. The legislature needs to balance the interests of women and men. If the laws can be  misused against men, they can also be used for recognition of justice at the same time. 

Difficulty in Prosecution? 

One of the contentions on the issue is that marital rapes are difficult to prove as they happen between four walls of the matrimonial home, it is difficult to distinguish between consensual and non-consensual sex. To an extent, it can be conceded that it is difficult but it would be wrong to say that it cannot be established. The idea that married women cannot be raped because they have had a sexual history with their husbands is no longer valid. Generally, the marital rape victims do not have physical injuries as they feel overpowered by their husbands, they generally submit to them27 The Supreme Court in a plethora of judgments has made it clear that lack of injuries and resistance cannot be construed as sexual consent.²⁸ 

Regardless of a woman’s past or her character, rape must be determined based on the particular facts of the incident.²⁹The case of marital rape can be established like any other offense- 

²⁴ Section 354 and 498-A, Indian Penal Code,1860 

²⁵ Section 323, Indian Penal Code,1860 

²⁶ Section 377, Indian Penal Code,1860 

²⁷David Finkelhor et al., The Dark Side Of Families: Current Family Violence Research, (1983), Sage Publications,  at pp. 126 

²⁸Pawan Kumar vs. State of HP, (2017) 7 SCC 780; State of U.P. v. Chhotey Lal, (2011) 2 SCC 550 (Submission does  not mean consent in rape cases); Rao Harnarain Singh Vs. State, AIR 1958 P H 123, 1958 CriLJ 563  ²⁹Sumit Mali, Reforming Criminal Law, New Trends in Rape Law, at para 53

⮚ Early medical examination of physical injuries to genitals and bodily injuries ⮚ Examination and cross-examination and other forensic evidences in rape case. ⮚ Admission by husband or other electronic evidence establishing the offence etc.  

The aforesaid list is not exhaustive but gives a fair idea, that it can be established reasonably and  without miscarriage of justice on either side. It is to be noted even if there is absence of medical  record and other evidence are believable. Then the absence of medical record is not considered  

fatal to the case. ³⁰ However, the law should be balanced and the case needs to be proved  substantially.  

Right To Privacy, Autonomy And Reproductive Choice   

“Women also have the right to life and liberty; they also have the right to be respected and  treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have  the right to lead an honorable and peaceful life.³¹ Recently, the 9 Judges Bench has made right to privacy as a fundamental right under article 21 of the constitution.³² The judgment has strengthened  the right of bodily integrity, sexual and reproductive autonomy. Justice Leila Seth, one of the  members of Justice Verma committee, writes in her book, “A woman’s autonomy and bodily  integrity are concepts that have developed over the years, thus making rape an offence unless  there is true consent.”³³ 

Personal autonomy has been recognized as a fundamental right under article 21 of the  constitution in plethora of judgments.³⁴The basis of rape should be consent immaterial of the  relationship between the parties. Moreover, a woman has an absolute right to determine during  the matrimonial life when to conceive a child. The human rights of women include their right to  have control over and decide freely on their reproductive health, free of coercion and  

³⁰Sheik Zakir vs State of Bihar, (1983)3SCR312 

³¹Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922, further at Para 9 

³²Justice K.S. Puttaswamy v. Union of India, 2017 SC, para 75 

³³Justice Leila Seth, Talking of Justice, People’s Rights in Modern India, 2014, Aleph Book Company ³⁴Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at para 7-8; Anuj Garg v. Hotel Assn. of India, (2008) 3  SCC 1 at para 34-35

discrimination.³⁵ As this has been settled by the Supreme Court, the Supreme Court observed  that “there is no doubt that a woman‘s right to make reproductive choices is also a dimension of  personal liberty under ar. 21 of the constitution of India. It is important to recognize that  reproductive choices can be exercised to procreate as well as to abstain from procreating. The  crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be  respected.”³⁶ This means that there should be no restriction whatsoever on the exercise of  reproductive choices, i.e., right to refuse participation.³⁷ 

However, right to bodily integrity and reproductive autonomy of women in India exist with a  draconian protection to marital immunity of husbands, and commonly it is the husband who  decides the reproductive decisions in a marital relationship. An example can be cited where a  wife is pursuing studies after marriage, wishes not to conceive a child to make a career but her  husband might coerce her to conceive children to fulfill wishes of his parents of having grandchildren. The incident is hypothetical to illustrate the point that a nine judge’s bench judgment will remain oblivious until marital rape becomes a crime 

Comparative Analysis With Other States 

The World’s shame: The Global Rape Epidemic report by an Organization, “Equality Now”,  carried from 2014-15 reported that among 82 legal systems, India was amongst only 10 countries  that legalized marital rape and protected rapist husband from criminal prosecution.³⁸ 

Till 1994, U.S.A had abolished marital rape completely and all 50 states had passed laws against  marital rape. The House of Lords’ Appellate Committee abolished marital rape in England and  Wales in 1991.³⁹ Later, amendment was made to section 147 of Criminal Justice and Public  Order Act, 1994. The decision of House of Lords was welcomed by European Court of Human  Rights.⁴⁰ The Court observed that “the abandonment of the unacceptable idea of a husband  

³⁵Beijing Declaration and Programme Of Action, 1995 

³⁶See, Supra note 32 at para 68; Suchita Shrivastava and Anr. v. Chandigarh Administration, AIR 2010 SC 235.  ³⁷Id. 

³⁸Equality Now, The World’s shame: The global Rape Epidemic; see also, UN Women, “Progress of World’s Women:  In pursuit of Justice” 

³⁹R v R, [1991] UKHL 12 

⁴⁰SW v. UK, (1995) 21 EHRR 363

being immune against prosecution for rape of his wife was in conformity not only with a  civilized concept of marriage but also, and above all, with the fundamental objectives of the  Convention, the very essence of which is respect for human dignity and human freedom”. Meanwhile in Australia⁴¹, the Court discarded the irrevocable consent of the wife given to the husband for sexual intercourse, calling that ‘it is no longer the common law’. 

India seems to be lagging behind in terms of modern legal system and human rights. The only  contention that is made often is that India has a peculiar culture and traditions which are different  from the west. Though, if we see an Asian country like Nepal which is a Hindu Nation and to an  extent have a similar socio- economic and cultural setup. The Supreme Court of Nepal took a  leap in the case of FWLD v. HMG⁴², “In the light of the discussions made in the foregoing pages  and spirit of equality guaranteed in the Constitution, various international human rights  instruments ratified by Nepal and changing norms and values in criminal law with the pace of  time, it is appropriate reasonable and contextual to define marital rape too as a criminal offence.  It cannot be said that any man who commits heinous and inhuman crime of rape to a woman may  be immune from criminal law simply because he is her husband. Such a husband has to be liable to  the punishment for the offence he has committed.” And, further in another case, it has been  expressed that there should not be any difference in punishment between marital and non-marital rapes.⁴³ 

International Instruments 

The basis of all fundamental rights belong to human rights, which aim to protect human dignity  and make life of an individual worth living. It is the duty of democracies to protect human rights  at all cost and comply with its International obligations as a state and a signatory. UDHR seeks  to protect human dignity and promises to give equality irrespective of gender and status. Further,  India is a signatory to International Covenant on Civil and Political Rights, 1976 (ICCPR) and  The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).  

⁴¹R v L,(1991) 174 CLR 379 

⁴²Writ No. 55/2058, Supreme Court Bulletin 2058 (2002), Vol.5, p. 129 (2001–2002)  

⁴³Jit Kumari v. Government of Nepal, (Writ No. 064-0035 of 2063)

The Human Rights Council in its Special Rapporteur⁴⁴ expressed that India need to include a  definition of marital rape as a criminal offence in compliance of UDHR.⁴⁵ The following are the  treaty obligations of India in International law 

ARTICLE	TREATY/INSTRUMENT	INTERNATIONAL OBLIGATIONS
Article 2 (1)	ICCPR	State obligation to ensure to all individuals  within their jurisdictions, the rights  recognized in the covenant without  discrimination ensure equal rights for men  and women.
Article 6 and  Preamble	ICCPR	Right to inherent dignity of every  individual
Article 7	ICCPR	Protection from Inhuman and degrading  treatment
Article 9	ICCPR	Liberty and security of person
Article 17	ICCPR	Right to privacy
Recommendation  19 of 1993 (Binding on  CEDAW  signatories  including India)	CEDAW/ General  Recommendations of  CEDAW (19  recommendation, 1993); Committee Reports of 2007  and 2014	Marital rape is a violence against women and a human right violation. UN committee  of CEDAW has repeatedly made  recommendations to make marital rape a  criminal offence under Indian Penal code.
	Beijing Declaration and the  platform for Action, 1995	Protection to bodily integrity, autonomy  and reproductive choices of women;  though, the declaration was not binding,  but it is implicit under the right of privacy.

⁴⁴Human Rights Council, Special Rapporteur on Violence against Women, 26^th session, available at  http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session26/Documents/A-HRC-26-38-Add1_en.doc ⁴⁵United Nations International Covenant on Civil and Political Rights, 1976

Article 2 of the Declaration of the Elimination of Violence against Women includes marital  rape explicitly in the definition of violence against women. The 19^th recommendation of  CEDAW (1993) established that marital rape is a human right violation.⁴⁶ The CEDAW  committee⁴⁷ urged India to “widen the definition of rape in its Penal Code to reflect the realities  of sexual abuse experienced by women and to remove the exception for marital rape from the  definition of rape”. The CEDAW in its fourth and fifth periodic reports of India (2014)⁴⁸ expressed concern over the retention of the marital exemption. It further urged India to comply  with the recommendations made by the Justice Verma Committee. 

International Treaties: Whether an obligation?  

It is also a directive⁴⁹ and an obligation under constitution to incorporate International  obligations of India in its domestic laws.⁵⁰Though, there had been doubts in the past that the  legislature and courts can be subjective of what rights can be recognized. It was made clear that  “Judges and Lawyers have duty to familiarize themselves with the growing International  jurisprudence of human rights and particularly with the expanding material on protection and  promotion of the human rights of women.”⁵¹ In a plethora of cases⁵², the Supreme Court has applied International treaties in domestic laws to protect women. The Supreme Court has  observed that the conventions and implementations adopted by the UN should be respected and  given full implementation.⁵³International conventions must be read into fundamental rights to promote  constitutional guarantee ⁵⁴.  

⁴⁶General Assembly resolution 48/104. Declaration on the Elimination of Violence against Women. (1993).  A/RES/48/104. 

⁴⁷CEDAW Committee 37^th session (2007), Comments of the Committee on the Elimination of Discrimination against  Women: India. UN doc CEDAW/C/IND/CO/3. 

⁴⁸CEDAW Committee 58^th session, (2014), Comments of the Committee on the Elimination of Discrimination against  Women: India. CEDAW/C/IND/CO/4–5 

⁴⁹Article 51 (c) of Constitution of India 

⁵⁰Article 253 of Constitution of India 

⁵¹Commonwealth Magistrates’ And Judges’ Association, The Victoria Falls Proclamation On The Human Rights Of  Women, Zimbabwe,1994, available at: http://www.cmja.org/downloads/vcfalls2.pdf (Last accessed 5^th Feb 2018) ⁵²Nilabati Behera v. State of Orissa,1993 (2) SCC 746, Madhu Kishwar V.State, (1996)5 SCC 125, Municipal  Corporation of Delhi v. Female Worker, AIR2000SC1282 

⁵³Chairman Railway Board v. Chandrima Das, AIR 2000 SC997. 

⁵⁴Nalsa v.Union of India, (2014) 5 SCC 438, at para 59 and 60

The Justice Verma committee recommended to delete the exception of marital rape under  section 375. Further, it was recommended that the relation of victim and accused as spouses  should not be regarded to give lower sentences for rape.⁵⁵ Though, the law commission of India,  in its 172nd Report on Review of Rape did not consider to amend section 375 for marital rape.⁵⁶ But the Justice Verma committee made a good case that consent should be the basis of rape  immaterial of marital relations and if it is committed by the husband, he should be given parity  of a rapist in terms of punishment. Despite the constant recommendations of UN⁵⁷ and the  holistic review of the Justice Verma committee, the government did not give much consideration to it  and it has been avoiding International obligations in the name of cultural relativism. 

Conclusion

From the above discussion, it is apparent that marital immunity of a husband fails the parameters  of constitutional values and human rights. It is high time that the legislature and judiciary of the  country step up and protect women from marital rapes. The institution of marriage and culture should no longer be protected when there is a matter of fundamental rights. Such derogatory  practices cannot be considered reasonable and acceptable for a progressive legal system. The  Parliament should recognize the constitutional objectives along with its obligations in ICCPR  and CEDAW. Therefore, the legislature should delete exception 2 of section 375 of Indian Penal  Code, 1860 and the punishment should be in parity as in the case of rape by a stranger. The basis  of Rape should be “consent”, immaterial of relations of the parties. Along with the needed  amendments, there is a need of awareness that women are no longer chattel of their husbands,  and wives have full autonomy to make every decision in their lives including sexual and  reproductive choices and it needs to be respected in every sphere. 

⁵⁵ Justice J.S. Verma et al., Reports of the Committee on Amendments to Criminal Law, 2013, available at:  http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf (Last accessed 5^th Feb 2018) 

⁵⁶Law Commission of India, 172^nd Report, 2000, D.O. No. 6 (3)/ 2000_LC(LS)  

⁵⁷See, Supra note 47 & 48

Authors: Mr. Piyush Chawla and Ms. Zaya Firdaus

Author Alias: ZayaWrites 

Author Note: The paper expressly discusses the issue of marital Rapes in India. This is much less talked about issue in any part of the world because of it being marital in nature. The paper also mentions international instruments in this regard.