INTRODUCTION

Marital Rape refers to unwanted intercourse by a man with his wife obtained by force, threat of
force, or physical violence, or when she is unable to give consent. Marital rape could be by the
use of force only, a battering rape or a sadistic/obsessive rape. It is a non-consensual act of
violent perversion by a husband against the wife where she is physically and sexually abused

The marital rape exemption can be traced to statements by Sir Mathew Hale, Chief Justice in
England, during the 1600s. He wrote, “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 herself in kind unto the husband, whom she cannot retract.”1

Not surprisingly, thus, married women were never the subject of rape laws. Laws bestowed an
absolute immunity on the husband in respect of his wife, solely on the basis of the marital
relation. The revolution started with women activists in America raising their voices in the 1970s
for elimination of marital rape exemption clause and extension of guarantee of equal protection
to women.

In the present day marital rape is not an offence in India. Despite amendments, law commissions
and new legislations, one of the most humiliating and debilitating acts is not an offence in India.
A look at the options a woman has to protect herself in a marriage, tells us that the legislations
have been either non-existent or obscure and everything has just depended on the interpretation
by Courts.2

Section 375, the provision of rape in the Indian Penal Code (IPC), has echoing very archaic
sentiments, mentioned as its exception clause- “Sexual intercourse by man with his own wife,
the wife not being under 15 years of age, is not rape.” Section 376 of IPC provides punishment
for rape. According to the section, the rapist should be punished with imprisonment of either
1
http://www.thehindu.com/features/metroplus/woman-uninterrupted-the-marital-rape-debate/article8370439.ece,
retrieved on 10.04.2016

2
http://indialawjournal.com/volume2/issue_2/article_by_priyanka.html, retrieved on 10.04.2016

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description for a term which shall not be less than 7 years but which may extend to life or for a
term extending up to 10 years and shall also be liable to fine unless the woman raped is his own
wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment of
either description for a term which may extend to 2 years with fine or with both.3

This section in dealing with sexual assault, in a very narrow purview lays down that, an offence
of rape within marital bonds stands only if the wife be less than 12 years of age, if she be
between 12 to 16 years, an offence is committed, however, less serious, attracting milder
punishment. Once, the age crosses 16, there is no legal protection accorded to the wife, in direct
contravention of human rights regulations.

How can the same law provide for the legal age of consent for marriage to be 18 while protecting
form sexual abuse, only those up to the age of 16? Beyond the age of 16, there is no remedy the
woman has.

The wife’s role has traditionally been understood as submissive, docile and that of a homemaker.
Sex has been treated as obligatory in a marriage and also taboo. Atleast the discussion openly of
it, hence, the awareness remains dismal. Economic independence, a dream for many Indian
women still is an undeniably important factor for being heard and respected. With the women
being fed the bitter medicine of being “good wives”, to quietly serve and not wash dirty linen in
public, even counseling remains inaccessible.4

Legislators use results of research studies as an excuse against making marital rape an offence,
which indicates that many survivors of marital rape, report flash back, sexual dysfunction,
emotional pain, even years out of the violence and worse, they sometimes continue living with
the abuser. For these reasons, even the latest report of the Law Commission has preferred to
adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a
provision may amount top excessive interference wit the marital relationship.

3
Section 375 & 375 of the Indian Penal Code, 1860

4
http://www.hiddenhurt.co.uk/marital_rape.html, retrieved on 10.04.2016

2
A marriage is a bond of trust and that of affection. A husband exercising sexual superiority, by
getting it on demand and through any means possible, is not part of the institution. Surprisingly,
this is not, as yet, in any law book in India.

The very definition of rape (section 375 of IPC) demands change. The narrow definition has
been criticized by Indian and international women’s and children organizations, who insist that
including oral sex, sodomy and penetration by foreign objects within the meaning of rape would
not have been inconsistent with nay constitutional provisions, natural justice or equity. Even
international law now says that rape may be accepted a s the “sexual penetration, not just penal
penetration, but also threatening, forceful, coercive use of force against the victim, or the
penetration by any object, however slight.” Article 2 of the Declaration of the Elimination of
Violence against Women includes marital rape explicitly in the definition of violence against
women. Emphasis on these provisions is not meant to tantalize, but to give the victim and not the
criminal, the benefit of doubt.

Marital rape is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel,
France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia. Rape in any
form is an act of utter humiliation, degradation and violation rather than an outdated concept of
penile/vaginal penetration. Restricting an understanding of rape reaffirms the view that rapists
treat rape as sex and not violence and hence, condone such behaviour.5

The importance of consent for every individual decision cannot be over emphasized. A woman
can protect her right to life and liberty, but not her body, within her marriage, which is just
ironical. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty,
to protect themselves against “perverse sexual conduct by the husband”. But, where is the
standard of measure or interpretation for the courts, of ‘perversion’ or ‘unnatural’, the definitions
within intimate spousal relations? Is excessive demand for sex perverse? Isn’t consent a sine qua
non? Is marriage a license to rape? There is no answer, because the judiciary and the legislature
have been silent.

5
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The 172nd Law Commission report had made the following recommendations for substantial
change in the law with regard to rape.6

1. ‘Rape’ should be replaced by the term ‘sexual assault’.

2. ‘Sexual intercourse as contained in section 375 of IPC should include all forms of
penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and
object/vaginal.

3. In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on
any part of the body should be construed as rape.

4. Rape laws should be made gender neutral as custodial rape of young boys has been
neglected by law.

5. A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be
created.

6. Section 509 of the IPC was also sought to be amended, providing higher punishment
where the offence set out in the said section is committed with sexual intent.

7. Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual
intercourse by a husband with his wife should be treated equally as an offence just as any
physical violence by a husband against the wife is treated as an offence. On the same
reasoning, section 376 A was to be deleted.

8. Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual
act and it is denied, the court shall presume it to be so.

The much awaited Domestic Violence Act, 2005 (DVA) has also been a disappointment. It has
provided civil remedies to what the provision of cruelty already gave criminal remedies, while
keeping the status of the matter of marital rape in continuing disregard. Section 3 of the
Domestic Violence Act, amongst other things in the definition of domestic violence, has included

6
www.lawcommissionofindia.nic.in/rapelaws.htm, retrieved on 10.04.2016

4
any act causing harm, injury, anything endangering health, life, etc., … mental, physical, or
sexual.

It condones sexual abuse in a domestic relationship of marriage or a live-in, only if it is life

threatening or grievously hurtful. It is not about the freedom of decision of a woman’s wants. It
is about the fundamental design of the marital institution that despite being married, she retains
and individual status, where she doesn’t need to concede to every physical overture even though
it is only be her husband. Honour and dignity remains with an individual, irrespective of marital
status.

Section 122 of the Indian Evidence Act prevents communication during marriage from being
disclosed in court except when one married partner is being persecuted for n offence against the
other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant,
unless it is a prosecution for battery, or some related physical or mental abuse under the
provision of cruelty. Setting out to prove the offence of marital rape in court, combining the
provisions of the DVA and IPC will be a nearly impossible task.

The trouble is, it has been accepted that a marital relationship is practically sacrosanct. Rather
than, making the wife worship the husband’s every whim, especially sexual, it is supposed to
thrive n mutual respect and trust. It is much more traumatic being a victim of rape by someone
known, a family member, and worse to have to cohabit with him. How can the law ignore such a
huge violation of a fundamental right of freedom of any married woman, the right to her body, to
protect her from any abuse?

As a final piece of argument to show the pressing need for protection of woman, here are some
effects a rape victim may have to live with,-7

 Physical injuries to vaginal and anal areas, lacerations, bruising.

 Anxiety, shock, depression and suicidal thoughts.

7
http://time.com/3976180/marital-rape/, retrieved on 10.04.2016
5
  Gynecological effects including miscarriage, stillbirths, bladder infections, STDs and
infertility.

 Long drawn symptoms like insomnia, eating disorders, sexual dysfunction, and negative
self image.

Marriage does not thrive on sex and the fear of frivolous litigation should not stop protection
from being offered to those caught in abusive traps, where they are denigrated to the status of
chattel. Apart form judicial awakening; we primarily require generation of awareness. Men are
the perpetrators of this crime. ‘Educating boys and men to view women as valuable partners in
life, in the development of society and the attainment of peace are just as important as taking
legal steps protect women’s human rights’, says the UN. Men have the social, economic, moral,
political, religious and social responsibility to combat all forms of gender discrimination.

In a country rife with misconceptions of rape, deeply ingrained cultural and religious stereotypes,
and changing social values, globalization has to fast alter the letter of law.

CRIMINALIZING MARITAL RAPE

The question regarding ‘when’ or most importantly ‘if’ the offence of “marital rape” would ever
be duly criminalized in our country remains to be vexed with hitherto absence of requisite
consensus amongst political fraternity much less any bold commitment within the successive
ruling dispensations so as to endeavor for openly debating if not putting in place the same
perhaps owing to the apprehension that any headway in this regard would result in invitation of
wrath from section(s) of our civil society which shall continue to be deeply embedded in its
patriarchal-mindset.

6
On 4th December 2015 during the Winter Session of the Parliament, the Central Government
asserted that it would bring a comprehensive law to criminalize ‘Marital Rape’ by amending the
Indian Penal Code (IPC) for which it is awaiting the report of Law Commission of India (LCI)
on the issue.8 “The issue of marital rape is very complicated and it is very difficult to explain and
describe it. These are of such extreme private nature and no records of any consent are available.
The matter has been dealt in detail by a Parliamentary Committee as well as the Law
Commission.” Union Minister of State for Home Affairs, Kiren Rijiju was quoted to have told
the Rajya Sabha while replying to a debate on a Private Member’s Bill.

He further added, “To move piecemeal is not right. We have asked for comprehensive review and
the Law Commission also took up the matter. We are awaiting the report and we want it to come
early,” while also asserting that there is a specific clause under section 498A IPC which already
deals with cruelty against women.

The Minister perhaps was referring to sub-section (a) therein which although does not cover the
offence of marital rape in strict technical sense, the same, of course, provides some amount of
scope for such hapless victims.

But the irony is that hitherto provisions of Section 498A IPC has both been generally known as
well as invoked to be only dealing with cruelty against wife vis-à-vis dowry demands. The
question to be answered is whether the definition of ‘cruelty’ as defined in the same provision
also impliedly covers ‘sexual nature’ apart from mental and physical as provided explicitly?

498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being

the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be
punished with imprisonment for a term which may extend to three years and shall also be liable
to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or

8
https://www.quora.com/Why-isnt-marital-rape-punishable-under-the-Indian-Penal-Code, retrieved on 10.04.2016

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(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.9
This is because ‘Sexual Offences’ are provided to be dealt under a separate Chapter of IPC viz.
under the heading “Of Offences Against the Human Body”. Hence, this is a grey area which
needs to be judicially interpreted so as to clear any ambiguity. The judicial and legal fraternity
ought to take up this vital aspect for closer scrutiny so that a void currently existing in our penal
statute viz. with respect to dealing with marital sexual cruelty, if not rape, can be filled to a
certain extent.

This is all the more necessary as of late there has been a spurt in cases of sexual abuse and
different forms of sexual violence committed against women, particularly wives in the society
with the perpetrators indulging in the same with impunity owing to the absence of an explicit law
which can bring them to book. Although there is a legislation enacted over a decade back viz.
Protection of Women from Domestic Violence Act, 2005 but that essentially provides for civil
remedies for sufferers/ victims of marital rape et al, hence it does not suffice.

Be that as it may, it is worth mentioning here that on 29 th April 2015, during the then Budget
Session of the Parliament, another counterpart of Rijiju viz. Haribhai Parathibhai Chaudhary who
is also the Minister of State for Home Affairs in a written reply in the Rajya Sabha conceded that
the Ministry of External Affairs and Ministry of Women and Child Development (WCD) have
reported that the UN Committee on Elimination of Discrimination against Women has
recommended to India, inter alia, to criminalize marital rape but presently there is no proposal to
bring any amendment to the IPC in this regard.10

Giving a written reply in the Rajya Sabha (April 2015), Union Minister of State for Home
Affairs, stated that “…presently there is no proposal to bring any amendment to the IPC in this
regard. It is considered that the concept of marital rape, as understood internationally, cannot be

9
Section 498A of the Indian Penal Code, 1860

10
http://indiatoday.intoday.in/story/exclusive-should-marital-rape-be-criminalised-in-india/1/622248.html, retrieved
on 10.04.2016
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suitably applied in the Indian context due to various factors eg. level of education/ illiteracy,
poverty, myriad social customs and values, religious beliefs, mindset of the society to treat
marriage as a sacrament, etc…”

One wonders how within such a short span of time, a U-turn has been witnessed in the viewpoint
of the ruling elite and also whether the new stand of the government would remain steadfast?

Further it needs to be recalled here that the Fifteenth LCI headed by Justice BP Jeevan Reddy in
its 172nd Report titled “Review of Rape Laws” submitted in March 2000 simply refused to
recommend criminalization of marital rape on the ground that “it may amount to excessive
interference with the marital relationship”.

Even thereafter a Department-Related Parliamentary Standing Committee on Home Affairs in its

167th Report (March 2013) in which it duly examined the Criminal Law (amendment) Bill, 2012
as submitted in the aftermath of the infamous December 2012 Nirbhaya’s case did not favour
criminalizing marital rape as it felt that the same has the potential of destroying the institution of
marriage. 11

The Parliamentary Committee felt that if a woman is aggrieved by the acts of her husband, there
are other means of approaching the court. In India, for ages, the family system has evolved and it
is moving forward. The family is capable to resolve the problems and there is also a provision
under the law for cruelty against women. It was, therefore, felt that if the marital rape was
brought under the law, the entire family system will be under great stress and the Committee may
perhaps be doing more injustice.

This position, however is in clear contrast with the recommendations of renowned jurist Late
Justice J.S. Verma headed ‘Committee on Amendments in Criminal Law’ in which it while
proposing a new definition for ‘Rape’ (Section 375 IPC) opined otherwise.

Extract from the “Report of the Committee on Amendments to Criminal Law”: “We, therefore,
recommend that:

11
www.lawcommissionofindia.nic.in/rapelaws.htm, retrieved on 10.04.2016

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 i. The exception for marital rape be removed.

ii. The law ought to specify that:

a. A marital or other relationship between the perpetrator or victim is not a valid

defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the
inquiry whether the complainant consented to the sexual activity;

c. The fact that the accused and the victim are married or in another intimate
relationship may not be regarded as a mitigating factor justifying lower sentences
for rape.”

Although the Report of this Committee was very much available before the above referred
Parliamentary Committee but the latter did not concur the approach of the former.

Much worse, although the Criminal Law (Amendment) Bill. 2012 as introduced in December
2012 as well as the Criminal Law (Amendment) Ordinance, as promulgated with much fanfare
on February 3, 2015 in the backdrop of public outrage witnessed over the Nirbhaya incident,
provided that sexual intercourse or sexual acts by a man with his own wife, the wife not being
under ‘16’ years of age, is not sexual assault, the finally enacted Criminal Law Amendment Act,
2013 retained this age limit as ‘15’ years as it stood pre-2013 although the newly incorporated
section 375 IPC in its definition of ‘Rape’ raised the age of woman vis-à-vis ‘with or without her
consent’ from ‘16’ to ‘18’. 12

It is pertinent to recall here that the Supreme Court in February 2015 rejected a plea by an
alleged victim if marital rape so as to declare it a criminal offence by saying that it wasn’t
possible to order a change in the law for one person. “You are espousing a personal cause and not
a public cause…this is an individual case,” a Bench of Justices AR Dave and R Banumathi
reportedly said while refusing to take up her plea.

However, months later in July 2015, Prof. Pam Rajput Committee, in its final report submitted to
the Union Women and Child Development (WCD) Ministry recommended that as a pro-woman

12
http://time.com/3976180/marital-rape/, retrieved on 10.04.2016
10
measure, marital rape should be considered as an offence irrespective of the age of the wife and
the relationship between the perpetrator and the survivor.

As the voluminous report submitted by the High Level Committee comprises four volumes, it is
highly hoped that the incumbent “Modi Sarkar” would seriously give due and worthy
consideration to the same along with consequential, suitable and timely implementations of its
recommendations rather than adopting a lackadaisical attitude over the same including for the
reason that the HLC was constituted during the tenure of its predecessor regime. This report
which is yet to be made public needs to be widely deliberated and debated involving all
stakeholders. There ought to be no room for petty politics at least in this regard. Pertinent that
days before the submission of this final report, Maneka Sanjay Gandhi, Union Minister of LCD
also echoed similar context of criminalizing marital rape and opined that “…My opinion is that
violence against women shouldn’t be limited to violence by strangers. Very often a marital rape
is not always about a man’s need for sex; it is only about his need for power and subjugation. In
such cases, it should be treated with seriousness.”13

At present, it seems just too difficult, if not impossible, to predict if an appropriate legislation so
as to bring the offence of marital rape within the purview of section 375/376 IPC is in the offing
notwithstanding the recent volte-face witnessed in the stand of the ‘Modi Sarkar’ over this vexed
issue. Be that as it may, pending due enactment of the same, it is incumbent upon both the
Central as well as the State Governments to ensure wider dissemination including via usage of
digital/ electronic, print, social media et al regarding prevalent provisions in both civil and
criminal law(s) relating to existing remedies available for hapless women suffering the menace
of various forms of sexual assault/ violence at the hands of their spouses so that they are able to
take proper recourse of such laws.14

It would be highly appreciable if the National and State Legal Services Authorities are also
actively involved in this exercise, primarily for providing requisite legal aid and advice to those
who are unable to do so on their own. Last but not the least, the feminist and other similar
organizations espousing for gender equality and justice ought to escalate their nation-wide

13
http://indialawjournal.com/volume2/issue_2/article_by_priyanka.html, retrieved on 10.04.2016

14
https://www.quora.com/Why-isnt-marital-rape-punishable-under-the-Indian-Penal-Code, retrieved on 10.04.2016
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crusade much more vigorously so that they can make up an effective pressure-group for
convincing the political class of our country to take an urgent call over the vexed issue of
criminalizing marital rape.

MARITAL LAW- Sex without consent in a marriage

Is sexual violence within marriage only confined to penetrative sex?

No, "Sexual violence" within marriage is also not confined to penetrative sex or insertion of
objects into body orifices. From the experiences that women narrate, it is inclusive of a range of
other acts of a sexual nature, including refusal to have sex because her husband finds her
repulsive, threatening that if she denies him sex he will bring other women and indulge in sexual
acts in her presence or rape their minor daughter, forcing the woman to have sex with his boss,
colleague or friend, or forcing her to undergo repeated abortions in pursuit of a male child, etc.

Why women don’t oppose such abusive marriage?

These sexual acts are committed only within a marriage because of the extreme vulnerability
which women have vis-a-vis their husbands.

Women do not walk out of abusive marriages because of

 the very nature of dependency. So even if the offending clause is deleted, it will not
change the lives of women unless they have a strong support base, and society stops
viewing marriage as the be all and end all of a woman's life.

Lacking state support and economic means, marriage is the only option for most women to ward
off destitution and secure a roof over their head. Rape every night and domestic violence
becomes a small price to pay, when basic survival is at stake.

Ranchi case

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A 15-year-old girl from Jamshedpur, who had been a victim of marital rape and domestic
violence for the past nine months. The girl, who got married to a 45-year-old man from Haryana
in year 2014, was brutally tortured by her husband and in-laws and kept locked up in the house,
the survivor's elder sister, who went to Rewari a few days ago, as said in FIR on 9-4-2016.

"The elder sister said the minor was treated inhumanly at her in laws' house
evidence stated that she had bruises all over her body. ."

Talking to TOI over phone, the survivor said her husband raped her every night and assaulted her
every night and assaulted her when she insisted on meeting her parents “They beat me up even
this (Sunday) morning when I requested them to let me meet my mother. Things were fine in the
beginning (of our married life) but gradually they started abusing and torturing me. They would
keep me locked up, not let me speak to anybody and do all the housework," Seema said.

SURVEY REPORT BY ICRW AND UNPFA ON MARITAL RAPE.

The International Centre for Women (ICRW) and United Nations Population Fund’s (UNPFA)
new study provides some insight into societal expectations of masculinity, son preference and the
impact on violence against women. Among the findings is some data on sexual violence within
relationships. The data assumes more importance since household-level data on the nature of
human relationships is rare in India.

The study was conducted in eight States only: Punjab, Haryana, Uttar Pradesh, Rajasthan,
Gujarat, Maharashtra, Madhya Pradesh and Odisha. It covered 9,205 men and 3,158 women aged
18-49, and the sample was representative across caste, religious and income groups.
The last NFHS showed that the vast majority of sexual violence reported by women was within
the marriage; just 2.3 per cent of rape that women reported to the NFHS interviewers was by
men other than the husband, researcher Aashish Gupta found.

13
The ICRW-UNFPA study does not ask questions about non-partner sexual violence. Here’s a
look at the marital status of their sample:

14
Here’s what they found on the prevalence of sexual violence within relationships, which, as the
relationship status data suggests, is largely marriages:

A third of men in these States admitting to having forced a sexual act upon their wives/ partners
at some point in their lives (note the far lower proportion of women who admit to the
experience). That is significantly higher than what Mr. Gupta found from the NFHS (6.6 per cent
of women said they had experienced sexual violence by their husbands), but the NFHS is both
pan-India and globally recognized as robust.

15
Between them, what these numbers clearly show is that sexual violence within marriages is
undeniably common.

UN POPULATION FUND REPORT

Approximations have quoted that every 6 hours; a young married woman is burnt or beaten to
death, or driven to suicide from emotional abuse by her husband. The UN Population Fund states
that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped
or forced to provide sex.

CONCLUSION

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Should marital rape be made a criminal offence and why?

A country where a huge section of women are not free to marry a partner of their choice, it is
hardly surprising that the concept of marital rape is not being addressed. At a time when
discussions on women empowerment and gender disparity are raging, the issue of sex without
consent in a marriage cannot be ignored. Replying to a question on whether or not the
government plans to criminalise marital rape, Maneka Gandhi said that the country was not
ready for such a legislation yet. In a written statement, she said, "It is considered that the concept
of marital rape, as understood internationally, cannot be suitably applied in the Indian context
due to various factors... rape is violence of the highest form and it is necessary to establish it as a
criminal offence first. "Just like the definition of rape was widened after the outrage over
Nirbhaya's rape case, marital rape needs to find a legal definition too," she says. While it is
common knowledge that rape of this nature exists, we also know that women are rendered
helpless by law. "When a woman approaches saying that her husband forces himself on her
physically every night, law feels helpless. Many married women around us suffer from brutalities
of sex voluntarily, because the law has no provision to protect them. Our law doesn't allow
divorce to be filed on the basis of marital rape. There are various reasons for it — the stigma
attached to it or simply due to lack of support from family or society. How can women come
forward to report marital rape when it is not criminalised?"

The position of those who have opposed these views also seem to be narrow, short-sighted and
not grounded in reality. They seem to suggest that women are trapped in sexually abusive
marriages only because of the clause which exempts husbands from the purview of section 376
of the Indian Penal Code (IPC). If this offensive clause is deleted, women will be able to walk
out at the very first instance of sexual abuse and press criminal charges against their husbands.
When women raped every night, even during pregnancy and child birth, the question foremost in
our mind should be : what else did this woman endure along with the violent sex? And also, if it
was not rape but brutal physical violence which fractured her skull, broke her limbs, damaged
her kidneys, scalded her face or paralysed her, would her trauma be any less? These concerns get
relegated to the sidelines while discussing marital rape.

17
But for the victim they form a continuum of a life of degradation and despair, where one act of
violence cannot be segregated from the other. How does placing violent penetrative sex on a
higher pedestal redeem her from this continuum of brutality? The demand for deletion of this
clause seems to subscribe to the patriarchal presumption that vaginal violation forms a separate
category, even within marriage, than other types of brutality.

Despite all the reforms, rape outside marriage continues to revolve around the notion of purity
and stigma, rendering the victim unfit for marriage. Hence, the notion that the abuser must marry
the victim prevails, not just in our society, but also in our courts. On the other hand, violent sex
within marriage becomes part of the abuse which an emotionally and economically dependent
wife is subjected to by the very man with whom she entered into a sexual contract. It has very
different implications. The very nature of the relationship demands that it be addressed as a
separate category.

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