Marital rape has not yet shaken the conscience of the legislature of the
country. The judiciary too has averted the question of marital rape. The recent
case law of Independent Thought v. Union of India whereby the age for a
married relationship to fall within the ambit of rape for a married couple was
construed to be not 16 years (as earlier) but 18 years – in parity with the
Indian Majority Act and all other legislation that determine majority at the age
of 18 years.
But, unfortunately, the judiciary once again reiterated the present legal
framework. In other words, the law of the land stands to advocate the
proposition that there can be no instance or fact of rape or forceful sexual
intercourse in a married relationship. It is presumed very organically that
marriage allows or confers the right to have sex whenever, wherever, and
howsoever! In the case-law cited above, this age that was as low as 16 years
meaning, firstly, that marriage was being conceived to be plausible even before
attaining majority that contravenes the other laws in place and secondly, in
such cases too, there won’t be any rape envisaged as such which otherwise would
be so if the 16 years old girl is not married. Of course, the Supreme Court
struck down the former but actively (by mentioning it in the judgment) desisted
from commenting on the issue of marital rape.
Thus, even though, presently, a girl below 18 years, if gets married, rape could
be construed for her. But, this does not protect women from being raped within
their marital bonds because this case only in effect invalidates any marital
bond if the girl is below 18 years and accordingly she would be treated similar
to any other unmarried girl or woman.
Basing upon this idea, there are two pertinent questions that are the key to
understanding the perspective of acknowledging marital rape.
- First: what exactly is the definition of marriage? Can marital rape- a
forceful and coercive act be justified within this?
- Second: does marriage afford a proprietary interest over the wife?
To answer the first question, definitions can be taken from three landmark
decisions of the Supreme Court that portray the definition of marriage from a
religious perspective as embodied in the personal law conceptualization. These
case laws are from the High Courts of Chhattisgarh, Calcutta, Gujarat, and
From the Hindu personal law lens, In Claudia Jude v. Lancelot Jude
was held that the only kind of marriage which the English law recognizes is one
which is essentially the voluntary union, for life, of one man with one woman.
In Rakesh Gautam v. State of Chhattisgarh
 the Gouna ceremony was under
consideration to construe whether the marriage was completed. It was observed in
this regard that the Gouna ceremony is a ceremony for uniting the bride and the
bridegroom as a part of marriage. These portray the uniting feature of marriage
that gives the essence of it being a spiritual union than a mechanical method of
transfer of property.
From the Muslim law perspective, in Sajan Husen Kumbhar v. State of Gujarat
section 250 of Mulla's Principles of Mahomedan Law, 19th Edition was quoted and
definition was unearthed as Marriage (nikah) is defined to be a contract which
has for its object the procreation and legalizing of children. Thus, even under
the Muslim law which considers marriage as a contract, the same does not give a
right to forceful sexual intercourse.
In fact, even considering the principles of contract (strictly which is also
followed for the Muslim Nikanama), forceful sexual intercourse will be an
unlawful object as such and will make the contract bad in law and void ab initio.
Thus, legally there cannot be any contract for marriage under Muslim law that
will allow forceful sexual intercourse making marital rape an offense per se.
In T.C. Chacko v. Annamma
, The sacramental dimension of Christian
marriage was identified and to quote, …reflects the eternal relationship of
Christ to His Church. Marriage is defined in the Canon Law thus:
the marriage covenant established by the Creator and ordered by his laws by
which a man and a woman by an irrevocable personal consent establish between
themselves a partnership of their whole life is by its natural character ordered
towards the good of the spouses.
The sacramental grace was identified and it was also observed that definition:
points to an insight of the mystical, spiritual and theological outlook and
perception of marriage characteristic to the oriental mentality.
So, here too, the voluntary partnership elaborated on the spiritual meeting of
the souls has been identified and that can certainly not permit the commission
of act akin to marital rape that will infringe upon these spiritual notions of
To answer the second question, the case of Joseph Shine vs. Union of India
be analyzed. Here, Adultery was read down, the reasoning augmented to strike
down the age-old section 497 IPC was that marriage cannot be considered to be a
proprietary interest of the husband which has been the reason or justification
behind the criminalisation of adultery that cannot sustain constitutionality and
is arbitrary writ large.
The judges were courageous to opine that adultery attempted to impinge upon this
proprietary interest of the husband and so to say hurt the ego that had led to
the continuation of this archaic law. Drawing from here, it can be understood
that marriage does not give any proprietary interest over the body of the woman,
and accordingly, the right to have sexual intercourse and demand sexual favors
is grossly unjust, uncouth, and inhumane.
While quoting Charles A. Tinker v. Frederick L. Colwell
, the judges
took note of how adultery was considered as trespass for which damages had to be
paid to recuperate for his wounded feelings and honour, the defilement of the
marriage bed, and for the doubt thrown upon the legitimacy of children.
Finally, on the ground of international obligations flowing down from Arts. 253,
73 (read with Entry 14, List I) and 51(c) of the Constitution of India, there is
an obligation on India to enunciate laws pertaining to the ratified treaties.
CEDAW is one such treaty to which India is a ratified member and has no
reservation except one on the complaint mechanism envisaged under Art. 29.
Art. 2 of CEDAW and also as noted in the famous Chairman Railway Board vs.
, India has an obligation to formulate laws on marital rape or
while making laws shall not breach the essence of the provisions (here that
being of marital rape). Thus, in consonance to CEDAW, it is long due for India
to enact legislation criminalizing marital rape.
To quote from the Convention, in Article 2, it was specified that:
… violence against women shall be understood to encompass, but not be limited
(a) physical, sexual and psychological violence occurring in the family
including battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and other
traditional practices harmful to women, non-spousal violence and violence
related to exploitation…
This idea can be seen to be reflected in a series of international case laws
that also advocate how marital rape is internationally recognized and is a
breach of the human rights standard. For example, in Prosecutor v. Francisco
, it was observed that:
If the present Court applies indiscriminately the entire prevision of article
285 PCI it will create marital rape as an exception inside the crime of rape in
East Timor: this position, according to my point of view, conflicts with
internationally recognized Human Rights standards. Marital rape, in fact,
violates the Convention on the Elimination of All Forms of Discrimination
Having a comprehensive look at these two vital questions surely reveals the
underlying insignificance of continuing with law and practice that avoids the
true justice being done to the women. It is with extreme hope that the author
writes this account by reposing complete confidence and faith in the present
apex court that has lately ensured a much humane outlook, especially to issues
pertaining to women.
- (2017) 10 SCC 80.
- Para 108, We make it clear that we have not at all dealt with the larger
issue of marital rape of adult women since that issue was not raised before
us by the petitioner or the intervener..
- AIR 1949 Cal 563.
- (2011) 106 AIC 484.
- (1999) 2 GLH 18
- AIR 1994 Ker 107
- (2019) 3 SCC 39
- 193 US 473 (1904).
- 2002 SCC OnLine SPSC 4