family law project.docx

8/18/2019 family law project.docx

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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

FAMILY LAW PROJECT

ON

MARITAL RAPE

SUBMITTED BY

PRIYA SEWLANI

2014083

IIIrd SEMESTER

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ACKNOWLEDGEMENTS

I would like to sincerely thank the Family law teacher Dr S Radhakirshan for giving me this

project on the “MARIA! RA"#$ which has widened my knowledge on the scope and

relevance of it in the Indian !egal System% &er guidance and support has 'een instrumental in

the completion of this project%

I would also like to thank all the authors( writers( columnists and social thinkers whose ideas

and works have 'een made use of in the completion of this project%

My heartfelt gratitude also goes out to the staff and administration of DS)!* for the

infrastructure in the form of our li'rary( that was a source of great help in the completion of

this project%

I also thank my friends for their precious inputs which have 'een very helpful in the

completion of this project%

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ABSTRACT

Marital rape violates the right of dignity of a married woman% It 'reaches the trust of wife%

#ven then( it is not criminali+ed as rape in India% It raises a ,uestion( is a married woman

'eing considered an o'ject or the property of the hus'and% It also raises the ,uestion( as to

does a married woman has right to save her 'ody from the lust of her hus'and% )o dou't the

purpose of the marriage is to provide right to have se- with wife% his paper points out

whether this right can 'e coupled with force or right to have se- is only coupled with will or

consent of wife% he purpose of the marriage in point of view of right to have se- should only

'e providing satisfaction of 'iological need without any check or 'urden of society and law%

India has 'een a male dominated society and it is also a fact that Indian culture gives special

status to the women% oday( we talk a'out women empowerment% .ut in a male dominatedsociety( would women 'e empowered in real sense without criminali+ing marital rape% he

main purpose of this paper is to find out as to whether se- without the consent of wife should

'e considered as rape% Doctrinal method of research will 'e applied in this paper% Rape is a

most heinous crime committed on a woman% It is immaterial whether women are married or

unmarried% Marital rape also violates the human right of a married woman i%e% safety and

integrity %/overnment of India is reluctant in making marital rape a crime% If a woman who is

under 01years of age and consensual intercourse is done with her it will 'e rape 'ut if she is

married and hus'and forcefully committed se- with her( it will not 'e rape% 2hy marital rape

is not 'eing covered under Indian penal code% his discrimination should 'e deleted%

Moreover( on one hand there are talks of empowering women and at the same time we are not

protecting the dignity and right to life of married women%

OBJECTIVE

he o'jective of the study is to do the analysis of the case and the concept of this ground%

Also it is to see the response of the judiciary regarding this ground and how court use this

ground as a result of the interpretation made 'y it%

Is to improve the condition of the women in India and should 'e physically and mentally

strong to handle every situation%

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Sco! OF T"! S#$d%

he study will cover the concept of marital rape and important cases of marital rape and also

articles related to it% Research will include the analysis of the case laws%

RESEARC& MET&ODOLO'Y

For this project titled( 3Marital Rape as a ground for divorce the doctrinal method was judged

to 'e most appropriate% "rimary resources referred to in the course of research include 'ooks(

journals( law reports and cases% 4ther sources like articles( surveys( and the like were

accessed online through the use of online data'ases%

INTRODUCTION

Rape has time and again( 'een defined to 'e the most heinous crime that can 'e committed

against a women% A crime which can 'e regarded as the most 'rutal attack that can 'e

inflicted upon virginity( youth( motherhood and womanhood itself% A wife getting 3raped5 'y

her hus'and is still a ta'oo and the Indian "enal 6ode( 0718 still stands shamelessly

chauvinistic in its approach( for it denies to see 3forceful intercourse5 'y the hus'and on his

spouse as rape at all and the "ersonal !aws lay no ground for divorce 'ased on 3marital rape5%

In these conditions where the woman has to continue living with her 3rapist5 hus'and( she has

to undergo the trauma of 'eing a'used9physically( mentally( psychologically and in all such

ways undermining her dignity9 she continues to live getting raped( often in ignorance and

mostly( in helplessness% Marital rape violates the right of dignity of a married woman% It

'reaches the trust of wife% #ven then( it is not criminali+ed as rape in India% It raises a

,uestion( is a married woman 'eing considered an o'ject or the property of the hus'and% It

also raises the ,uestion( as to does a married woman has right to save her 'ody from the lust

of her hus'and% )o dou't the purpose of the marriage is to provide right to have se- with

wife% his paper points out whether this right can 'e coupled with force or right to have se- is

only coupled with will or consent of wife% he purpose of the marriage in point of view of

right to have se- should only 'e providing satisfaction of 'iological need without any check

or 'urden of society and law% India has 'een a male dominated society and it is also a fact that

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Indian culture gives special status to the women% oday( we talk a'out women empowerment%

Many rights have 'een provided to the women in India% .ut in a male dominated society(

would women 'e empowered in real sense without criminali+ing marital rape% he main

purpose of this paper is to find out as to whether se- without the consent of wife should 'e

considered as rape% Marriage is an institution which admits men and women to family life% It

generates love and trust% It is a sta'le relationship in which a man and a woman are socially

permitted to have children implying the right to se-ual relations% Institution of marriage gives

permission to a male and a female to live together under customary and statutory law% It is a

special 'ond shared 'etween two souls( who tie the wedding knot after promising to 'e

companions for a lifetime% It is the physical( mental and spiritual unison of two souls%

2hen a male marries with a female( it means man is duty 'ound to give due respect to thedignity of wife% )ow ,uestion arises whether marriage gives right to the hus'and to have se-

with his wife forcefully or in other words( is marriage takes away the right of a lady to refuse

to have se- with her hus'and% It is a de'ata'le ,uestion in India in present scenario% Marriage

generates confidence in wife that hus'and will provide safety and respect her dignity and

when he commits unwanted:forcefully intercourse with his wife( it 'reaks this confidence and

'reaches the trust of the wife% Indian criminal law also demands changes and inclusion of

marital rape in section ;


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contravention of the principles of human rights and provides hus'ands with a “licence to

rape$ their wives%@

&()#or%

Or(-(.) *.d T"!or(!)

Recognition of marital rape as a crime is a recent development in the history of law%

State laws on marital rape in the *nited States can 'e traced to #ngland( where the

first 6hief >ustice Sir Matthew &ale pronounced that a hus'and cannot 'e guilty of

rape of his wife for 'y their mutual matrimonial consent and contract the wife hath

given herself in this kind unto the hus'and which she cannot retract% @ his

statement 'ecame known as the !ord &ale doctrine and represented a common9law

marital rape e-emption( under which hus'ands could not 'e accused of committing

the crime of rape against their wives% &is doctrine relied on a theory of irrevoca'le

consent to justify the e-emptionB that is( the view that 'y entering into the contract of

marriage( the parties consent once and forever to all future acts of se- Almost two

centuries later( this principle was em'raced 'y the *%S% legal system( which formally

recogni+ed the e-emption in the 07=< 6ommonwealth v% Fogarty decision%

P"%)(c*+ A.d P)%c"o+o-(c*+ E//!c#) O/ M*r(#*+ R*!

Despite the historical myth that rape 'y one5s partner is a relatively insignificant event

causing little trauma( research indicates that marital rape often has severe and long9lasting

conse,uences for women% he physical effects of marital rape may include injuries to private

organs( lacerations( soreness( 'ruising( torn muscles( fatigue and vomiting% 2omen who have

'een 'attered and raped 'y their hus'ands may suffer other physical conse,uences including

'roken 'ones( 'lack eyes( 'loody noses( and knife wounds that occur during the se-ual

violence% Specific gynaecological conse,uences of marital rape include miscarriages(

still'irths( 'ladder infections( infertility and the potential contraction of se-ually transmitted

diseases including &IC%;

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2omen who are raped 'y their partners are likely to suffer severe psychological

conse,uences as well% Some of the short9term effects of marital rape include an-iety( shock(

intense fear( depression( suicidal ideation( and post9traumatic stress% !ong9term effects often

include disordered eating( sleep pro'lems( depression( pro'lems in esta'lishing trusting

relationships( and increased negative feelings a'out themselves% "sychological effects are

likely to 'e long9lasting% Some marital rape survivors report flash'acks( se-ual dysfunction(

and emotional pain for years after the violence%

T%!) o/ *r(#*+ r*!

he following three kinds of marital rape are identified 'y legal scholars as generally

prevalent in the society?

B*##!r(.- r*!? In “'attering rapes$( women e-perience 'oth physical and se-ual violence in

the relationship and they e-perience this violence in various ways% Some are 'attered during

the se-ual violence( or the rape may follow a physically violent episode where the hus'and

wants to make up and coerces his wife to have se- against her will% he majority of marital

rape victims fall under this category%

Forc!o.+% r*!? In what is called “force9only$ rape( hus'ands use only the amount of force

necessary to coerce their wivesB 'attering may not 'e characteristic of these relationships% he

assaults are typically after the woman has refused se-ual intercourse%

O)!))(! r*!? 4ther women e-perience what has 'een la'elled “sadistic$ or “o'sessive$

rapeB these assaults involve torture and:or “perverse$ se-ual acts and are often physically

violent%

C$rr!.# S(#$*#(o.

According to the Ministry of &ome Affairs( a crime is committed against a woman in India

every three minutes% he )ational 6rime Records .ureau reports 0(7=(;0@ crimes committed

against women in @88< E


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separated woman in traditional Indian society% 2hile attitudes towards women in educated(

ur'ani+ed areas have improved( those of rural India remain unenlightened% .oth men and

women see violence as a part of gender relations% he *)F"A report found that some


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6onsent heory? his theory is 'ased upon the premises that the marriage is entered into 'y

the parties out of their free consent and volition and hence they must also 'e free to put an

end to the marriage if 'oth of them agree%

.reakdown heory? his theory provides that if the marriage is irretrieva'ly 'roken down

and 'ecame a wreck( leaving no su'stance in the marriage e-cept the form( the parties must

'e free to put an end to the marriage%

*nder the current set of guidelines provided under the "ersonal !aws for divorce( marital

rape is not included in any of the "ersonal !aws% he grounds for divorce include

cruelty however marital rape doesn5t come under the am'it of cruelty%1

In India marital rape e-ists de facto 'ut not de jure% 2hile in other countries either the

legislature has criminali+ed marital rape or the judiciary has played an active role in

recogni+ing it as an offence( in India however( the judiciary seems to 'e operating at cross9

purposes% In Bodhisattwa Gautam 5 Subhra Chakraborty7 the Supreme 6ourt said that

“rape is a crime against 'asic human rights and a violation of the victim5s most cherished of

fundamental rights( namely( the right to life enshrined in Article @0 of the 6onstitution% et it

negates this very pronouncement 'y not recogni+ing marital rape% hough there have 'een

some advances in Indian legislation in relation to domestic violence( this has mainly 'een

confined to physical rather than se-ual a'use% 2omen who e-perience and wish to challenge

se-ual violence from their hus'ands are currently denied State protection as the Indian law in

Section ;


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4nly two groups of married women are covered 'y the rape legislation N those 'eing under

0= years of age and those who are separated from their hus'ands% 2hile the rape of a girl

'elow 0@ years of age may 'e punished with rigorous imprisonment for a period of 08 years

or more( the rape of a girl under 0= years of age carries a lesser sentence if the rapist is

married to the victim% Some progress towards criminali+ing domestic violence against the

wife took place in 07; when Section ;


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providing supporting mechanisms for women to e-ercise 'odily integrity and se-ual

autonomy 7

L!-*+ o)(#(o. (. o#"!r co$.#r(!)

In *nited States researchers estimate that 08K to 0K of married women e-perience rape in

marriage% 2hen researchers e-amined the prevalence of different types of rape( they found

that marital rape accounts for appro-imately @=K of all rapes% Despite the prevalence of

marital rape( this pro'lem has received relatively little attention from social scientists(

practitioners( the criminal justice system( and larger society as a whole% In fact( it was not

until the 0


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no longer represented the position of a wife in present9day society( and that it should no

longer 'e applied% 6orresponding amendment to the statutory law was made through Section

0< of the 6riminal >ustice and "u'lic 4rder Act( 0% his judgment was also affirmed 'y

the #uropean 6ourt of &uman Rights in the decision of SW v% UK 08%

In )ew Pealand( the marital rape e-emption was a'olished in 07= when the present Section

0@7 to the 6rimes Act( 010 was enacted% Su'9section GH now provides that a person can 'e

convicted of se-ual violence in respect of se-ual connection with another person

notwithstanding that they are married at the time the se-ual connection occurred% Further( the

fact that the parties are married or have 'een in a continuing relationship will not warrant a

reduction in sentence%0@ here is now( therefore( no distinction in principle to 'e drawn

'etween se-ual violation in marriage and outside of marriage%

In Me-ico( the country5s 6ongress ratified a 'ill that makes domestic violence punisha'le 'y

law% If convicted( marital rapists could 'e imprisoned for 01 years% In Sri !anka( recent

amendments to the "enal 6ode recogni+e marital rape 'ut only with regard to judicially

separated partners( and there e-ists great reluctance to pass judgment on rape in the conte-t of

partners who are actually living together% &owever( some countries have 'egun to legislate

against marital rape( refusing to accept the marital relationship as a cover for violence in the

home% For e-ample( the /overnment of 6yprus( in its contri'ution to the Special Rapporteur(

reports that its !aw on the "revention of Ciolence in the Family and "rotection of Cictims(

passed in >une 0;( clarifies that “rape is rape irrespective of whether it is committed within

or outside marriage$%

M*r(#*+ R*! or So$)*+ R*!

Marital or spousal rape is rape committed 'y one spouse against the other% )ow the ,uestion

that arises is( whether to have se- with wife without consent is to 'e considered as rape or rape 'y male spouse will only 'e non9consensual se- with wife and not rape% Indian law does

not criminali+e marital rape% It also raises a ,uestion why it is not rape% 2hy it cannot 'e

criminali+ed under section ;


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complainant was a legally9wedded wife of accused( the se-ual intercourse with her 'y

accused would not constitute offence of rape even if it was 'y force or against her wishes$

According to the *) "opulation Fund( more than two9thirds of married women in India(

aged 0= to ( have 'een 'eaten( or forced to provide se-% In @800( the International Men and

/ender

Co.c+$)(o. *.d S$--!)#(o.)

Rape is a most heinous crime committed on a woman% It is immaterial whether

women are married or unmarried% Rape is rape irrespective of the fact that who

commits it either hus'and or stranger% Marital rape also violates the human right of a

married woman i%e% safety and integrity% /overnment of India is reluctant in making

marital rape a crime% If a woman who is under 01 years of age and consensual

intercourse is done with her it will 'e rape 'ut if she is married and hus'and forcefully

committed se- with her( it will not 'e rape% 2hy marital rape is not 'eing covered

under Indian penal code% his discrimination should 'e deleted% Moreover( on one

hand there are talks of empowering women and at the same time we are not protecting

the dignity and right to life of married women% Rape is rape either committed 'y her

hus'and or committed 'y third person% Marital rape should 'e covered under anti9rape

laws in India 'ecause she should 'e allowed to protect her dignity% he study points

out that married women are 'eing raped fre,uently 'y their hus'ands% 2hile official

data on marital rape is meager( activists and lawmakers maintain there is plethora of

evidence to imply it is on the rise% If a woman marries( it should not mean that she has

lost her dignity against her hus'and% She cannot 'e considered as a property of the

hus'and% She should 'e empowered to say no( if she is not willing to have se- withher hus'and% &us'and should not 'e allowed to force his wife to

have se- with him% Rape should 'e considered only rape without any e-ception of

marital rape% Marriage should not 'e considered as a license of committing rape%

>ustice Cerma 6ommittee recommended criminali+ing marital rape as rape 'ut this

recommendation was not considered% So( Section ;


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the institution of marriage( should not give right to the hus'and to play with dignity

and sentiments of his wife% 2hen hus'and commits marital rape( he also 'reaches his

promise made 'y him at the time of marriage% Majority of the Indian women mainly

agree with the occasional domestic violence% his mentality is the reason of violence

against this much widespread violence% As soon India5s women achieve consensus

that se-ual a'use is not accepta'le( the lawmakers can follow the track and revise

India5s 'ackward laws%

Succinctly( it can 'e said the dissimilarity 'etween marital rape and non9marital rape

should 'e removed 'ecause marriage does not provide license for committing rape

and the dignity of women either married or unmarried is alike%

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