I Year B.A. L.L.B.

– Semester-I (2023)

1st -Internal Assessment –

Foundation Of Ethics

Critical Essay Writing

“AGAINST THE CRIMINALIZATION OF MARITAL RAPE”

Group Members: Adrija Das, Urja Nagda, Mansha Sharma

DIVISION: E
PRN: 23010125412 (Urja), 23010125418 (Mansha), 23010125430 (Adrija)
COURSE: BA LL.B. (H)
BATCH: 2023-2023

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“Nothing is ever only good and nothing is ever only bad. Everything is somewhere in the middle.”

-Will Hill, After the Fire

Ignorance of the intricacies of law often leads to categorizing legislation as either wholly right or wrong.
However, the law cannot strictly be black or white. Instead, multiple truths coexist. We can correlate the
above statement to the idea of criminalization of marital rape. A bird's eye view advocating the exception
might seem misogynistic in the context of the demand for the equal footing of men and women. However,
looking deep into the arguments, one could identify legal lacunas that encircle the idea of criminalizing
marital rape. The Doctrine of Coverture emanated in colonial times, showing the presence of marital rape as
an exception to be centuries old, regards a woman as devoid of personal identity after marriage, and all her
property latches onto her husband's authority.

In such a way, Marital rape refers to rape1 committed where the wrongdoer is the husband-
Marital rape, as an exception to the law, under section 375 Indian Penal Code, 1890-
Exception 22
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of
age, is not rape”

This essay shall attempt to expand on the ideas negating the criminalization of the marital rape exception.

Supporters of criminalization argue that the exception violates Article 143 of the Constitution as it goes against
the concept of equality. In RIT Foundation v Union of India4, J.Hari Shankar dissented that the marital rape
exception does not violate Article 14. Although Article 14 talks about "equality before the law,", Ram
Krishna Dalmia v Justice S.R Tendolkar 5 laid down the “classification test” which allows those placed
under different circumstances or categories to be treated differently. This also relates to the concept of
“intelligible differentia”, which simply translates to “difference capable of being understood”. Relating this
to the MRE, we can see that there exists a “qualitative distinction”6 between the nature of the sexual
relationship that a woman shares with her husband in comparison to that with a stranger. When we speak
about conjugal rights,a nuptial relationship comes with certain reasonable sexual expectations and the sharing
of close ties which cannot be assumed in the case of a stranger. The gravity of hurt, violation, and humiliation
suffered by a woman at the hands of her husband vs a stranger cannot be placed on the same footing. The
1
Indian Penal Code, 1860, section 375.
2
Id.
3
INDIA CONST. Art 14.
4
RIT foundation v Union of India, (2022) SCC Online Del 1404 (India).
5
Ram Krishna Dalmia v Justice S.R Tendolkar, (1958) AIR 538.
6
Id

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harsh and rigourous way the rape laws were crafted, were keeping a stranger in mind, not the husband. As
J.Shankar explained, subjecting a husband and a stranger to the same rape laws and their consequent
punishments would clearly be “equalizing of unequal” thus going against Article 14.

In the aftermath of Tuka Ram And Anr v State of Maharashtra 7, the Criminal Law Amendment Act8 was
passed in 1983, which amended Section 114(A) of the Indian Evidence Act9. The section says that once the
woman pronounces lack of consent in court, the burden of proof to refute the claim will be upon the accused.
Considering the private nature of a marital relationship and the fact that sexual activities of it are mostly
confined to the four walls of the bedroom, proving the presence or absence of consent will be an arduous task
due to lack of circumstantial evidence. . Apart from this, proof of a pre-existing sexual relationship between
the partners will not be of much substance, as this would be expected in the case of a married couple.10

The MRE in no way tries to exempt the husband from accepting liability. It simply says that such an act
would not be punishable under "rape." Alternative remedies exist for aggrieved women through The
Protection of Women from Domestic Violence Act 2005 11, Sec 498 of IPC12, The Dowry Prohibition Act13
and so on . Holding these remedies invalid because they do not categorize the offenses as "rape" would be
unreasonable. They attempt to rectify the injustices an aggrieved woman faces and thus address the objective
sought to be achieved. When effective remedies are present in the existing laws, the urgency and necessity of
criminalizing the exception disappears.

"Therefore, shall a person go away his father and mother and shall cleave unto his wife and they shall be
one flesh" (Gen 2:24) is a quote from the Bible. Similarly, inside the Hindu subculture, the custom of
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Saptapadi is the practice wherein the bride and the groom walk seven steps in front of the sanctified fire.
The marriage solemnizes, and the partners are tied in an eternal bond once the seventh step is taken.

V.K Gupta v. Nirmala Gupta(SMT)15 held that "The sanctity of marriage is, in essence, the foundation of
civilization." various cases and parliamentary reports cited above highlight the auspicious and sacred lens
through which a matrimonial relationship is viewed in Indian society. In the cultural setup of India, even the
idea of a prenup is not recognized by law, showing that lawmakers have always attempted to protect the
sacredness of marriage as an institution.

7
Tuka Ram And Anr v State of Maharashtra, (1979) AIR 185.
8
The criminal Law(Amendment) Act, Act No. 13, 2013.
9
The Indian Evidence Act, (1872), section 114 A, 1872.
10
Rao Kallakuru, R. and Soni, P., 2018. Criminalisation of Marital Rape in India: Understanding Its Constitutional,
Cultural and Legal Impact. NUJS L. Rev., 11, p.121
11
Protection of Women from Domestic Violence Act, Act No. 45, 2005.
12
Indian Penal Code, 1860, section 498.
13
The Dowry Prohibition Act, 1961, Act No. 28, 1961.
14
Id.
15
V.K Gupta v. Nirmala Gupta(SMT), MANU/SC/0365/1979.

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In the 17th century, Justice Matthew Hale held that "... for by their mutual matrimonial consent and
contract the wife hath given up herself in this kind unto her husband, which she cannot retract." In other
words, Hale argued that by entering into the marriage, a woman gave her implied consent to sex with her
husband. This consent nullified any subsequent charge of rape since that crime was and is defined in the
common law as intercourse without the victim's consent.

It is true that not implementing a law just because it may have its downsides is not an excuse. Nevertheless, it
is equally essential to bring to the spotlight the various valid apprehensions regarding pseudo accusations,
inadvertent consequences, and dilution of trust. When the legislators created various provisions to safeguard
the rights of women, their objective in mind was to make amends for the various injustices they faced. The
weaponization of laws by displeased wives as a way to harass the husbands and their families is reflected
through the case of Arnesh Kumar v. State of Bihar 16, which highlights the misuse of section 498-A of IPC17
and Section 4 of the Dowry Prohibition Act .18 Statistics reflect that disharmonies in nuptial ties have been on
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the rise in contemporary times. Punishments under Section 376 extend to a minimum imprisonment of ten
years which may also go up to life imprisonment. Such a harsh punishment adding to the non-bailable and
non-cognizable nature of the offense, much like Section 49820anticipates a similar potential misuse of the law,
which goes against the legislators' intention.

Moreover, 150 countries have made marital rape a criminal offense, while India is among the minority of
nearly 32 countries that still do not recognize it as a crime. These stats are used as a rationale to strike down
the exception. However, J. Hari Shankar rightly observes that India's sociological and economic status greatly
differs from that of the international community. Due to problems like illiteracy and poverty along with the
presence of diversity in Indian society, criminalization of the exception may not be as straightforward as in the
international sphere.

The criminalization of marital rape has multiple pitfalls that should be addressed before striking down the
exception. The 42nd law commission recognized the committed act as rape in case of judicial separation of the
husband and wife. It still did not criminalize marital rape in the circumstances otherwise. The J. Verma
Committee 2013 recommended the criminalization of marital rape; however, on the passing of The Criminal
Amendment Bill 201321 , the request was not implemented. The split verdict delivered in the Delhi High
Court judgment in 202222 to highlights the polarised nature of the marital rape debate.

16
Arnesh Kumar v. State Of Bihar (2014) Scc 273, MANU/SC/0559/2014
17
The Indian Penal Code, 1860, section 498-A
18
The Dowry Prohibition Act, 1961, section 4, Act No. 28, 1961
19
The Indian Penal Code, 1860, section 376
20
Id
21
Criminal Law(Amendment) Act, (2013), Act No. 13, 2013
22
Id

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The divinity with which marriage is treated shows that interference of public opinion within the spheres of
marriage is an unattainable concept within Indian society. A law that breaks down the ideals of the family
systems that have been revered since time immemorial will always be grappled with.

Blackstone's ratio in criminal law says, "Better that ten guilty persons escape than that one innocent
suffer." Justice for the majority, at the cost of injustice for a few, is inexcusable. The issues of the Burden of
proof of evidence on the accused and probable misuse of the law were discussed before reflecting the
injustices that could materialize if innocent men were to fall victim to pseudo-feminism because of this law.

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Rape is already a stigmatized subject in society. The misuse of rape provisions through Section 375 would
promote an idea of male bashing. This would reduce the credibility of other women-centric provisions and
rape allegations in particular. Unguarded women may not be taken seriously anymore with their accusations
because of habituated misuse of the rape law. Thus, this law carries the risk of harming both innocent men
and women.

Merely changing a statute in the rule book would not necessarily manifest as a positive social change in
practical society. Though striking down the exception might advocate justice in theory, when incomplete
legislation does more harm than good or is unable to reach the objective it seeks to achieve, justice cannot be
seen to be done.

Hence, to end this essay with a quote by Lord Hewart, "Justice should not only be done but should
manifestly and undoubtedly be seen to be done".

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Id

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References

1. Agarwal, S., & Chatterjee, S. (2010). Sexual Autonomy of a Wife: The Indian Perspective. NLIU L.
Rev., 1, 151
2. Aneesha Mathura (May 12, 2022). ‘Sanctity of Marriage’- Why one Delhi High Court judge ruled that-
‘marital rape’ is not a crime. https://www.indiatoday.in/news-analysis/story/sanctity-marriage-delhi-high-
court-judge-marital-rape-verdict-criminalisation-1948685-2022-05-12
3. Arnesh Kumar v. State Of Bihar (2014) Scc 273, MANU/SC/0559/2014
4. Han, T. C. (1989). MARITAL RAPE – REMOVING THE HUSBAND’S LEGAL IMMUNITY. Malaya
Law Review, 31(1), 112–128. http://www.jstor.org/stable/24865602
5. Protection of Women from Domestic Violence Act, 2005
6. Ram Krishna Dalmia v Justice S.R Tendolkar, (1958) AIR 538.
7. Rao Kallakuru, R., & Soni, P. (2018). Criminalisation of Marital Rape in India: Understanding Its
Constitutional, Cultural and Legal Impact, NUJS L. Rev., 11, 121.
8. RIT foundation v Union of India, (2022) SCC Online Del 1404 (India).
9. Sharma, S., & Mishra, D. C. (2021). Marital Rape Criminalization: A Critical Study. Ilkogretim
Online, 20(6), 2338-2347
10. Singh, S., & Kar, A. (2021). Marital rape and the indian penal code. Legal Lock Journal, 1(2), 1-10.
11. The Constitution of India, 1950, art. 14.
12. The Criminal Law (Amendment), 2013
13. The Dowry Prohibition Act, 1961
14. The Indian Penal Code, 1860, 375
15. The Indian Penal Code, 1860, 375, Exception 2
16. Tuka Ram And Anr v State of Maharashtra, (1979) AIR 185
17. Yadav, V. (2022). Criminalizing Marital Rape in India. Indian Journal of Law and Legal Research, 4, 1-
14.

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