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“The great secret of a successful marriage is to treat all disasters as incidents and none of the incidents as disasters”.

Time and again a cacophony surfaces from various corners especially from feminine activists that the concept of ‘marital rape’ should be recognised and the husbands forcing the wives to have sex with them against their willingness should be tried under the law of rape.

It’s unfortunate that instead of resolving the sensitive social issues amicably with compassion, using the tools of counselling, every time the civil society on issue of slightest importance  start emphasising on making laws.

What else will you criminalise in a domestic relationship? You have already started sneaking in the bedrooms. There is a strong possibility of vested interests behind promoting such non-issues in the courts of law.

The issue of the marital rape has very recently surfaced in two different high courts who have given different judgments on the similar type of matter. It has frequently been observed that as different watches and clocks give slightly different timings at the same scale of the Standard Time, different courts give varied, divergent and at times contradictory judgments on the same matter of law. The reason behind this can be attributed to judicial overreach crossing the barricades of the separation of power norms. Where is the need for individual observations all the time. This phenomenon will surely give rise to divergent judgments from bench to bench.

A division bench of Kerala high court comprising justices Mohammad Mushtaq and Kausar Edappagath on August 6, 2021, dismissed the appeal of a man who had challenged a family court order allowing his wife’s plea for divorce on grounds of cruelty in the result of forced sex by husband among other reasons such as unnatural sex and dowry demands.

However, the law book in Section 375 of IPC provides no space for marital rape. It’s Exception 2, says “ Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”It implies that sex with a wife who is over 15 years  is not rape, even if it is without her consent. However, during October, 2017, in Independent Thought vs. Union of India, the Supreme Court ruled that sex with one’s minor wife , who is below 18 years of age, would amount to rape, despite her consent.

However, despite the above facts, the Kerala high court gave a new turn to this issue, which will have a significant impact on this sensitive matter. The bench said, “Autonomy is now considered as a part of privacy and ennobled as a fundamental right.” If bodily integrity is a violation of individual autonomy then it contradicts the provisions of Section 375 of IPC. 

In contrast to the above, The Chhattisgarh high court on August 23, 2021, in a revision petition discharged a 37 year-old man from the charge of matrimonial rape, saying that sex with a legally wedded wife is not rape under the Indian Penal Code (IPC). The court however retained the charges of Section 377 IPC for ‘unnatural sex’ and Section 498-A for dowry demands.

In his order, Justice N.K. Chandravanshi said, “In this case, complainant is legally wedded wife of applicant no.1 (husband), therefore, sexual intercourse or any sexual act with her by the husband  would not constitute an offence of rape, even if it was by force or against her wish.

Upholding the traditional and cultural history, matrimonial jurisprudence has approved that solemnisation of marriage shall mean the unconditional and lifetime consent to sexual act by the wife. The 15th Law Commission headed by Justice B.P. Jeevan Reddy in its 172nd Report, captioned, “Review of Rape Laws”  submitted in March 2000 denied to criminalise marital rape on the ground that it will be an excessive interference of law in marital lives of the people. Further, the Parliamentary Standing Committee of Home Affairs, which examined the Criminal Law (Amendment) Bill, 2012, in the aftermath of Delhi gang rape case , in its 167th Report submitted in March, 2013, did not recommend criminalisation of marital rape on the ground that it would have the potential of destroying the sacred institution of marriage, which is based on mutual love and trust. In the year 2019, High Court of Delhi had turned down  a petition seeking a declaration of marital rape as ground for divorce. The Supreme Court too in the past refused to take up the issue saying that it is the domain of the Parliament.

Lord Mathew Hale, the 17th century Chief Justice of England, in ‘History of the Pleas of the Crown’ wrote, “the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract”.

 Lord Hale asserted that upon marriage a wife consents and automatically hands over her person to the husband for sexual acts and the consent once given is irrevocable, which cannot be retracted subsequently. 

The flip side of this version is that it is not only the nuptial duty of the wife to provide sex to her husband but on the contrary, it is the primary nuptial duty of the husband also to provide the desired level of concupiscence to wife besides meeting to her other needs such as protection, provisions, home and other domestic facilities. In many statutes applicable in India, ‘impotence’ of husband is one of the major grounds for divorce sought by the wife. Whereas, frigidity or barrenness of wife is not the ground of divorce for men. As a matter of fact the principal objective behind the sacred institution of marriage for centuries has been the ‘procreation’ and the only way to achieve that goal is through monogamous sexual act. The marriage in all societies can be termed null and void if not consummated.

In September, 2011, the Daily Express reported a unique ruling of a French Court, which ordered a 51 year old man to pay his ex-wife nearly 8,500 pounds in damages for failing to have enough sex with her during the 21 year marriage. The man, Jean-Louis B was fined under Article 215 of France’s Civil Code. The Judge in the south France’s highest court in Aixen Province ruled that this law clearly implies, “sexual relations must form part of a marriage”.

“A sexual relationship between husband and wife is the expression of affection they have for each other, and in this case it was absent. By getting married, couples agree to sharing their life and this clearly implies they will have sex with each other”, the judge ruled.

In fact, the wife had already filed a suit for divorce two years ago in a lower court in Nice, blaming the break-up on her husband’s lack of activity in the bedroom. The court had then granted the divorce holding the husband solely responsible for the split.

But two years later, his 47 year old ex-wife took him back to a higher court demanding the cash in compensation for “lack of sex over 21 years of marriage”. The man admitted not having enough sex blaming tiredness and health problems for his inactivity. 

However, today we see that on one side there is a hue & cry about husband’s not providing the desired level of concupiscence to
wife, which can be corroborated from numerous reported cases of adultery quite often published in newspapers. Whereas, on the other side husband is being accused for demanding compulsive sex from wife. In India, laws have been enacted in regard to violence against woman in her own house like laws against dowry, cruelty, domestic violence and female infanticide, etc. In 2005, the protection of Women from Domestic Violence Act, was passed, which did not consider marital rape as a crime but considered it as a form of domestic violence.

In April, 2015, Minister of State for Home Affairs, Haribhai Parthibhai Chaudhary, responding to a question in Rajya Sabha had said, “It is considered that the concept of marital rape, as understood internationally, can not be suitably applied in the Indian context. One of the reasons cited was that marriages are treated as a sacrament in the country.

Noted Advocate Trisha Singh Kadyan, feels, “The word ‘rape’ has been derived from the Latin term ‘rapere’, which means ‘to seize’. Rape is therefore a forcible seizure or ravishment of a woman without her consent. Rape is coercive, violent, non-consensual sexual intercourse with a woman by applying fear or fraud to commit the offence. Whereas, this is absolutely not the case of the married couples as the relationship between husband and wife depends on mutual trust, understanding, love and caring attitude”. 

Trisha further said, “ How can you compare a criminal’s act with that of the life partner, who besides sexual act, lives together, eats together, sleeps together and also brings-up the children with tenderness. A criminal rapist resort to violence because the woman is not available to him and out of craziness or addiction just like a robber, he would choose to grab the opportunity by coercion, fear or fraud. Whereas, the husband with whom his wife is readily and peacefully available is least likely to resort to violence. If at all a husband is violent, he is violent holistically, as he will not exhibit his violent attitude only for coitus but also in other aspects of life. That way the cruel husband may ill-treat the wife every time, impose upon her heavy burden of the household work and will put unreasonable restrictions, use indecent language and neglect her health and well-being. For such aberrations, there are enough legal provisions to deal with a violent husband. In any case making criminalization of the so-called marital rape makes no sense.”

Renowned Advocate
Dr. Madhumita Kothari,
 said, “Marital issue may be an issue only in that sector of the population which has not been socially awakened and where women are envisaged only as objects and subject of consumption and goods of utility. In our society especially in the underdeveloped section, men and women never receive any counselling before or after the marriage as to the requirements of a conjugal relationship and how to handle the same. Thus emerges the problem of compelling sex without the happy consent of the partner both sides. This is the issue, which needs to be understood in its intricacy and dealt with. However, considering it as grievous as rape will disturb the concept of the institution of marriage and procreation will be greatly impeded resulting in degeneration of human society. Such issues in a conjugal relationship get eased out over a time and with the increase of love and affection between the partners  and the onset of maturity.”

Dr. Madhumita feels, “the sexual urges of a man are biological and driven by his hormones. The excessive energy in a man need to be channelized into several outlets so that sex does  not become the only ways and means to his attaining self satisfaction. This also should be dealt with in pre- marriage and post-marriage counselling. The elders of the family have a moral and educative role to play in helping the young couple settle down. Behavioral issues should be dealt with empathy and not by using the large stick of law, as the same may become counter productive. The aim should be to save the family through correctional approach and not to destroy it through punitive and revengeful way by undesired interference of law.

Dr. Madhumita felt most lamented to observe that people unnecessarily demand laws on issues and matters which were required to be addressed by sociologists, psychologists  and physicians. Negating the theory of making law on so-called marital rape, Madhumita said that the basic purpose behind making laws is to clear the chaos, rather than creating the chaos. Madhumita quoted St.Thomas Aquinas who once said, “Laws may be unjust through being opposed to the Divine good; such laws are the laws of tyrants…laws of this kind must no wise be observed.” St. Augustine also expressed the view that a law which is not just is no law at all.”

Dr. Surat Singh, Supreme Court lawyer, educated at Harvard and Oxford, said, “The controversy whether marital rape should be treated as rape punishable under Section 376 IPC or it should be treated as ‘domestic violence’ is alive and kicking. Since the consequences will be serious it is important to address the underlying concerns seriously. On the one side, there is a question of a violence on human body against her will. On the other hand intervention in the privacy of bedroom of a married couple is not to be encouraged. The context of abusing the legal provision by either side cannot be ignored. The gross abuse of laws against dowry is an example in point.”

Dr. Surat Singh further said, “Marital therapy is a far more effective tool to handle marital discord, rather than complain to the police on either side. It’s an unfortunate aspect that Indian police have not been sufficiently sensitized to deal with the matters of human dignity, particularly women’s dignity. If we treat unwilling sexual intercourse between the married couple as a proper ‘rape’ under Section 376 IPC, it will create more conflict and friction and a marriage that might be salvaged by proper counselling may be finished forever. But we cannot allow one married person to impose his/her will on another person in the name of marriage. Therefore, such conduct should be treated as ‘mental cruelty’ or ‘domestic violence’. It will be considered a sufficient ground for divorce where the perpetrator will be treated as a defaulting party.”

Dr. Surat Singh feels, “The wife demanding more sex than husband is more likely to happen in western world. In India, in most of the cases such situation will be a fantasy of husbands. But whether it is men or women, both are to be treated with respect and not a play thing. Mutual respect is a foundation of any good human relationship and marital relationship cannot be an exception to this premise.”

Hasan Khurshid, Associate Editor

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