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SEXUAL AUTONOMY OF A WIFE: THE INDIAN PERSPECTIVE
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SEXUAL AUTONOMY OF A WIFE: THE
INDIAN PERSPECTIVE
AUTHORED BY
- PRASHANT BHADU
Assistant
Professor, Andaman Law College,
Port-Blair-744101
I.
INTRODUCTION
Marriage constitutes the
foundation-stone of social organization in India. According to the 71st
Report of The Law Commission of India,1 the essence of marriage is
the sharing of common life, a sharing of all the happiness that life has to
offer and all the misery that has to be faced in life.
While Hindu, Christian and Parsee
laws regard marriage as a sacrament, indissoluble and eternal, Muslim law and
the Special Marriage Act regard marriage as a civil contract. It is however
undisputed that in India marriage is the golden fabric that holds society
together.
Irrespective of what view each
religion takes of marriage, it confers a status of legitimacy on the parties
and gives rise to certain spousal rights and obligations. The question of
whether sexual intercourse between a married couple is regarded as one such
spousal obligation is a contentious issue when the sexual privacy of a person
is at stake. The rape laws and
provisions for restitution of conjugal rights have been studied to establish
the rationale behind their existence and such laws have a tendency to unfairly
place the wife on a weaker footing.
The authors shall strive to showcase
whether India recognizes a married woman’s right to her own sexual
inviolability.
The Constitutional mandate of our country
guarantees certain Fundamental Rights to all. Robbing a wife of her sexual
autonomy is a sad testimony to the institution of marriage, since it amounts to
a violation of this Constitutional mandate. This paper attempts to ascertain
whether the laws of the land recognize this right of a wife to decide when and
where her body is to be made a vehicle for sexual intercourse with her husband.
II. MARITAL RAPE:
BREAKING THE SILENCE
Marital
Rape means a wife being raped by her husband. Common law had exempted marital
rape till the 19th century and the justification for
The husband
cannot be guilty of rape committed by himself upon his lawful wife, for by
their mutual matrimonial consent and contract the wife hath given up herself in
this kind unto her husband, which she cannot retract[1]
In India it is still exempted by
virtue of the Exception of Marital Rape from the offence of Rape as defined in
S.375 of The Indian Penal Code, 1860. The rationale given for taking such a
view may be that
It is for the wife to love, honour,
and obey; it is for the husband to love, cherish, and protect
[2] Thus a husband cannot become guilty
of rape by forcing his wife to his own embraces. Considering the fact that rape
is considered as a taboo subject in India and victims of rape are stigmatized
in Indian society, it is not surprising that there has never been any case
dealing with marital rape in Indian jurisprudence. Hence the authors will be
relying on the historical perspective and development of marriage and marital
intercourse to ascertain the reasons for exempting marital rape and whether
such reasons are justified in the present day scenario.
A.
Historical
treatment
Permanent
consent rationale and marital unity
Various justifications state that the
marriage contract implies permanent consent to sex, have been advanced in
support of a spousal exemption in the law of rape. The rationale utilized is
that when a woman marries, she gives up her rights to her body because she has
formed a contract with her husband which cannot be retracted. [3] This
doctrine made the rape of a woman by her husband a legal impossibility since a
man could not rape his wife who had given permanently up the right to her body
to her husband.[4]
Also, common law rationale for the
marital rape exemption was that, upon marriage, the wife's identity merged into
the existence of her
by marriage, the husband and wife are
one person in law: that is, the very being or legal existence of the woman is
suspended during the marriage, or at least is incorporated and consolidated
into that of the husband; under whose wing, protection and cover, she performs
everything
[5]
B. Modern justifications
a) Invasion
into the sanctity of marriage
Defenders of the marital
exemption who believe that it protects the sanctity of marriage argue that the
criminalization of marital rape will destroy any chance of reconciliation and
will violate marital privacy.7 It is indeed likely that a rape
prosecution by a wife against her husband would destroy the possibility of
reconciliation. The debate over whether marital privacy overrides the
individual privacy is to be of Constitution in marital matters will not be
desirable as it will be a ruthless destroyer of the marital institution and
application of constitution will only weaken the bonds in a marriage
[6]
b) Spousal
rape is not as serious as non-spousal rape
It has been contested quantitatively as well as
qualitatively that marital rape does not happen as often as other forms of rape
for the criminal and judicial system to be concerned.[7][8] It is
considered that marital rape is less traumatic as compared to rape by a
stranger and a bedroom squabble cannot be equated with a heinous crime like
rape.[9] This
conclusion was derived from the case of R v. Hind where the wife even after
being raped by her husband used to go to meet him in the jail.[10]
c) Problem
with evidence and proof
The argument offered in support of
keeping the marital rape exemption is that it would be impossible to prove a
marital rape case when the couple has had consensual sex, perhaps hundreds of
times before.[11] Also,
justification for spousal immunity is that the criminalization of marital rape
will lead to women filing false rape charges in order to gain leverage in
divorce and custody proceedings.[12]
d) Other
remedies available
Last of all it has been argued that the wife has
various other alternatives. She can carry out legal remedies under Section 351
of Indian Penal Code, 1908 or battery and most importantly under Domestic
Violence Act, 2005. She can also file for divorce under her personal law. It
has been claimed that since marital rape is not considered as grave as rape by
a stranger, these remedies are sufficient.[13]
C. Critiquing the exemption
a)
Permanent
consent is no longer valid
The doctrine of permanent consent
recently has been characterized as legal fiction, since it appears unrealistic
to assume that modern women give unqualified consent to sexual relations with
their husbands during marriage.[14] No one
consents to violence when they marry. Though they may consent to sex in the
marital relationship, women do not voluntarily consent to being raped by their
husbands simply because they have entered into a contract for marriage. Also,
earlier it could have been considered that marriage leads to unity but in
today’s date a woman has a different
identity. For example, it is not just the house of the husband which is
considered to be a marital home but her house can also be the marital house.[15] The personal
laws also provide for separate living which proves that law considers wife to
be a separate entity.
b)
Qualitative
and quantitative perspective
It is submitted that the argument of
marital rape being lesser both quantitatively as well as quantitatively than
other rape crimes reflects on apathy towards the distress of a married woman.
Dealing with the quantitative argument first, it is unreasonable to believe
that rape does not occur in marriage. Existing data suggests that 14% of
married women have been raped by their husbands at least once.[16] Any lack
of quantitative information may be due to the fact that marital rape in most
states is not a crime for the fear that reporting the crime will be useless,
and that the investigative process and accompanying backlash from the guilty
spouse may be worse than the crime itself and it may lead to the destruction of
the marriage and family. This is the case especially in countries like India
where marital rape is not exempted. Also, the quantitative figure does not
determine the criminality of an act. A wife who is raped by her husband will be
more traumatised because of a sense of betrayal, disillusionment, the upset of
the whole marriage, and the fact that rape may be repeated for several years.[17] She will
also have to face her rapist every day and be reminded of the violation by her
husband.
c)
Heinousness
of rape in any form
“The fact that rape statutes exist
... is a recognition that the harm caused by a forcible rape is different, and
more severe, than the harm caused by an ordinary assault”
It affects the sexual integrity of a woman
and cannot be equated with assault and battery. Also, an important argument is
that marital rape may not lead to assault or battery and even in a situation
where the husband has assaulted his wife he may go the extent of raping his
wife in order to come under the protection. Even the punishment under the
Domestic Violence Act, 2005 does not inflict a punishment as much as provided
under Indian Penal Code, 1860 and hence may not deter the men adequately.[18]
d)
Burden of
proof
It is stated that it will be very
difficult to prove marital rape. But this is no argument The difficulty of
proof has never been a proper criterion for deciding criterion for deciding
what behaviour should be officially censured by society [19]
If this is so then cases if this is so then cases of battery or incest should
also not be a crime. Stating that it
will lead to false evidence would be predicated on the assumption that women
are vindictive liars, is our jurisprudence is designed to test the very truth
or falsity of accusations in all criminal proceedings [20]
e)
Privacy of
a wife
This is an increasing recognition of a wife’s own
violation and right to her own privacy and space even within the boundaries of
marriage. That being the case, she has a right over her own body and a right to
decide when and where her body is to be used for sexual gratification.
Countering the argument of how criminalizing marital rape would disrupt the
reconciliation process, it is hard to imagine how charging a husband with the
violent crime of rape can be more disruptive of a marriage than the violent act
itself. Moreover, if the marriage has already deteriorated to the point where
intercourse must be commanded at the price of violence we doubt that there is
anything left to reconcile.[21] Our
society should not attempt to protect a decaying and violent marriage by
suggesting reconciliation at the expense of a woman's continuing abuse.[22]
Supporters of this modern
justification also suggest that the marital exemption avoids interference with
marital privacy. Although our legal system prefers to avoid interfering with
problems between spouses, the state has a valid interest in preventing violent
sexual assaults. The Highest court in the state of New York held that just as a
husband cannot invoke a right of marital privacy to escape liability for
beating his wife, he cannot justifiably rape his wife under the guise of a
right to privacy
[23] Because the state intervenes in
other areas of domestic violence, such as wife beating, there is no valid
reason to exclude marital rape as an area unworthy of state protection. Also,
it is preposterous to argue that the Constitution cannot interfere.
An act within the personal law cannot
be allowed to infringe the constitution itself and sexual expression is so
integral to one’s personality that it is impossible to conceive of sexuality
other that consensual intercourse. It offends human dignity. Any form of sexual
intercourse with a girl below 16 is considered to be rape but marital rape of a
15-year-old girl by her husband is not considered to be rape! In spite of
marital rape being recognized as a crime in various countries[24]
Indian legislature still advocates
the historical view of marital unity and marriage being a permanent consent.
While Section 376(A) of The Indian Penal Code views sexual intercourse with a
wife without her consent by a judicially separated husband as an offence of
rape, the offence still does not include similar sexual intercourse when it
occurs within the precincts of marriage.
III. AN ANALOGOUS STUDY: RESTITUTION
The conspicuous absence of any case
laws regarding marital rape in India may lead to an inference that forceful
sexual intercourse in a marriage has not been addressed by the Indian judiciary
as such. However, this issue of personal autonomy and sexual independence within
a marital relationship has tangentially arisen in a few judgments pertaining to
restitution of conjugal rights.
A decree of restitution effectively
results in an unwilling party, who has left the company of the other spouse or
withdrawn from his or her society, being forced to cohabit with such spouse for
a period of one year. Hence an analysis of the provisions of restitution and
the jurisprudence surrounding it will assist in understanding how the legal
position regarding the sexual integrity of a married woman has been shaped in
our country.
A.
The concept of restitution
Of the various remedies available in marital
discord, one is that of ‘restitution of conjugal rights’[25]
The remedy of restitution of conjugal rights is a positive remedy that requires
both parties to the marriage to live together and cohabit.
Restitution of Conjugal Rights is a relatively new
notion in Indian matrimonial jurisprudence that finds its origin in the Jewish
laws. The remedy was unknown to Hindu law till the British introduced it in the
name of social reforms. In fact it is the only matrimonial remedy which was
made available under the British rule to all communities in India under the
general law.[26]
The remedy dates back to feudal
England, where marriage was considered a property deal, and wife was part of
man’s possession.
India, being a British Colony, inherited this law
along with the several other laws as well.[27][28] There is
a very popular proverb that one can take the horse to a pond, but cannot force
him to drink water. The provision of Restitution of Conjugal Rights is along
similar lines. After the solemnisation of marriage, if either the husband or
the wife, without reasonable cause or excuse, withdraws from the society of the
other, the aggrieved party may approach the Court for restitution of conjugal
rights to ensure cohabitation and resumption of marital ‘consortium’ [29]
B. Consortium
Where either the husband or the wife
has withdrawn from the society of the other party without just cause, the court
orders the withdrawing party to return to the conjugal fold, so that the
consortium is not broken.[30]
Consortium in the context of marriage has been defined as
companionship, love, affection,
comfort, mutual services, sexual intercourse
[31]
The cohabitation of two people as
husband and wife means that they must live together not merely as two people
living in one house, but as husband and wife.[32]
This implies that cohabitation as a result of restitution has to involve all
aspects of marital consortium, which inter alia include sexual intercourse.
C.
Sexual Intercourse in Restitution
The Delhi High Court has held that the remedy of
restitution aims at cohabitation and consortium, not merely at sexual
intercourse.[33] This line
of argument that sexual relation constitutes an important part of marriage but
is not the summum bunum of a matrimonial consortium has been reaffirmed by the
Supreme Court as well.[34]
In this regard it is pertinent to
note that in 1983 the Andhra Pradesh High Court had held S.9 of The Hindu
Marriage Act, 1955 (restitution of conjugal rights) to be unconstitutional in
T. Sareetha v. T. Venkata Subbaiah.[35]
Choudhary, J., had argued in this case that a decree for restitution against a
wife who had left her husband may be misused by a husband for enforcing coerced
sexual intercourse upon her. While stating that the right to privacy and sexual
autonomy was retained by a wife even after marital association, it was held by
the Court that the provisions for restitution were violative of Art.19 and
Art.21 of the Constitution. The Court further went on to declare that since a
decree for restitution and subsequent cohabitation (and inter alia, sexual
intercourse) would irretrievably alter the life-pattern of a wife if she
conceived from her husband during the restitution period, it would cripple her
future plans in life if she were to seek for divorce later. In this manner the
Court established that the remedy of restitution would in reality become
one-sided and available only to the husband, thus violating the pledge of equal
protection of laws as envisioned in Art.14.
However this decision in T. Sareetha
was rejected by the Delhi High Court in 1984 in Harwinder Kaur v. Harmanadar
Singh Choudhary36 where it was held that the objective behind
restitution was not to enforce sexual intercourse but rather to act as a
cooling-off period for reconciliation between a couple so as to avoid a sudden
breakdown of marriage. T.Sareetha was scathingly criticised by Rohatgi, J., who
the result of a misconceived view of
marriage being nothing more than a legalised means of sexual self-satisfaction.
The Supreme Court over-ruled T. Sareetha in Saroj Rani v. Sudarshan Kumar
Chadha[36] by
declaring that the institution of marriage stood for much more than mere sexual
congress and holding that S.9 of The Hindu Marriage Act, 1955 was not
unconstitutional when viewed from the proper perspective of ensuring
matrimonial reconciliation.
IV. THE INTERFACE OF
MARITAL RAPE WITH RESTITUTION: PLAYING THE DEVILS ADVOCATE
It is humbly submitted that the above
discourse on restitution reveals that while sexual intercourse is recognised as
one of the elements of marital consortium, it is not the summum bunum in a
decree for restitution. It has further been established that the court’s
rationale behind a decree for restitution is not to enforce sexual intercourse
but to provide the married couple with an opportunity to reconciliate and sort
out their differences.
However, it is contended that while
there may be an ennobling objective behind restitution, it does not negate the
fact that there is scope for abuse of such a provision as was envisioned in T.
Sareetha. Marital rape has been carved
out as an Exception to S.375 of The Indian Penal Code. As has been discussed
above, the traditional view of a wife's identity merging into the existence of
her husband is still prevalent in India with regard to the offence of rape. It
is submitted that in such a scenario, when the Supreme Court itself has
recognised sexual intercourse as one of the elements of matrimonial
cohabitation, it is reasonable to assume that a situation may arise where
during a period of restitution a husband chooses to have forced sexual
intercourse with such wife who was unwilling to live with him in the first
place.
While it can be argued that forced
sexual intercourse with a wife may be considered as a reasonable cause” for such wife leaving her husband
in the first place and a Court would not be expected to grant a decree for
restitution in favour of the husband in such circumstances, it still leaves the
wife without a criminal recourse when such intercourse is forced upon her
subsequent to the decree for restitution.
The authors contend that marital rape
is not recognised as an offence in India in the first place, and a decree of
restitution in favour of a husband acts as a tacit, albeit minute, recognition
of marital rape as a conjugal right. The authors submit to the Supreme court’s observation
in Saroj Rani that sexual intercourse cannot be enforced through a decree for
restitution. However, the authors further extend this argument to propound that
while a decree for restitution does not enforce sexual intercourse per se, such
a decree amounts to a facilitation of such an act.
T. Sareetha had been criticised and
over-ruled by the apex court on the ground that it had oversimplified the
concept of restitution to imply only sexual intercourse. The erstwhile Attorney
General of India had dismissed the observations in T. Sareetha by stating that
a few freak instances of hardship may arise on either side cannot be a ground
to invalidate a piece of legislation
[37] The authors contend that the
arguments put forth by Choudhary, J., in T. Sareetha for invalidating S.9 of
The Hindu Marriage Act, 1955 are based on recognised principles of Indian
constitutional jurisprudence, and the situations and circumstances referred to
in the case are practical examples which can plausibly exist anywhere in the
country. The authors contend that the
Delhi High Court and the Supreme Court mainly took objection to the fact that
Choudhary, J., had equated restitution solely with sexual intercourse. It is
further submitted that the rationale behind the judgment in T. Sareetha was the
upholding of the Fundamental Rights of a married woman.
It is submitted that these same
arguments of T. Sareetha would pose a serious threat to the Constitutional
validity of the Exception to Rape if such a case were to be brought before the
judiciary.
V. CONSTITUTION VIS-A-VIS PERSONAL LAWS
The judiciary has for some reason
been reluctant in applying the constitutional mandate to personal laws.
Rohatgi, J., had opined in Harvinder kaur, that ‘Introduction of constitutional
law in the home’s most inappropriate. It is like introducing a bull in a china
shop.’
In this regard it would
be useful to understand the concept of the Constitution, and the rationale (if
any) behind excluding the constitutional mandate when dealing with personal
laws.
A.
Constitution suprema lex
Supremacy of the Constitution is a concept well
established as a vital part of the basic structure of the Constitution.[38] Ultimate
Rule of Recognition. As per H.L.A. Hart, legal system is a combination of
Primary and Secondary rules. Primary rules are rules of obligation while
secondary rules are parasitic upon primary rules and are rules about primary
rules. While primary rules impose duties, secondary rules confer power, public
or private.[39]
It essentially propounds that the
Constitution is the Supreme Law of the Land and all other laws are to be read
and enforced in light and within the limitations of the constitution including
all personal laws.
B. Constitutional mandate in personal laws
It is submitted that one of the
reasons for negating the supremacy of the Constitution when personal laws are
in question may be that if the constitutional mandate was applied to personal
laws, quite a few of the personal laws would become void. However, the authors
contend that it is not up to the discretion of judges as to whether to apply
the constitutional mandate to a particular set of laws or not. Principles of
our Constitution must govern all laws that are in force in the country. Every
law, being enforced within the territory of India, must under all circumstances
be recognized by the ultimate rule of recognition or the Constitution It is not
the discretion of judges to selectively apply the constitutional mandate. This
point of view has been affirmed by the Bombay High Court in In Re Amina.[40] Dhanuka,
J., while delivering the judgment, took a bold step and for the first time
declared that all personal laws are subject to the constitution. Even customs
and usages having the force of law are void if found inconsistent with any of
the fundamental rights guaranteed by the Constitution. He held
It could not be the intention of the
founding fathers of our Constitution to create any immunity in favour of
personal laws” [41]
Such an interpretation has been
resorted to by the Supreme Court itself in a number of cases. The apex court
has on certain occasions tested personal laws on the touchstone of fundamental
rights and read down these laws or interpreted them so as to make them
consistent with fundamental rights.
In Githa Hariharan v. Reserve Bank of
India[42] a three
judge Bench of the Supreme Court was considering the Constitutional validity of
S.6 of the Hindu Minority and Guardianship Act. The challenge was on the basis
that the section discriminates against women, as the father is the natural
guardian of a minor and not the mother. The Court did not reject the Petition
on the ground that it could not go into Constitutional validity of personal
law. Instead it read down S.6 so as to bring it in consonance with Articles 14
and 15.
In John Vallamattom v. Union of India47
a three Judge Bench of the Supreme Court had considering the Constitutional
validity of S. 118 of the Indian Succession Act, 1925, a pre-Constitutional
personal law applicable essentially to Christians and Parsis and struck it down
as being violative of Article 14 of the Constitution.
Commenting on this aspect of whether
personal laws are subject to the provisions of Part III of the Constitution and
hence governed by the principles of Art.13, eminent Constitutional expert H.M.
Seervai has opined:
“We have seen that there is no
difference between the expression 'existing law' and 'law in force' and
consequently. Personal law would be 'existing law' and 'law in force'. This
conclusion is strengthened by the consideration that custom, usage and
statutory law are so inextricably mixed up in personal law that it would be
difficult to ascertain the residue of personal law outside them.”[43]
The authors contend that the above
position of including personal laws within the ambit od laws in force as stated
in Art 13. of the Constitution of India
and therefore making them subject to all constitutional tests is the correct
position of law. All laws in the country must be recognized by this ultimate
rule of recognition, failing which, they must be declared void. A law which is
violative and contrary to the provisions and norms of the Constitution or the
ultimate rule of recognition has to be struck down as unconstitutional. When
viewed in this light, a fresh look has to be taken of T. Sareetha on merits and
all conventional Constitutional tests have to be made applicable to Marital
Rape and the Restitution of conjugal rights to ascertain whether they amount to
an obliteration of the right to sexual autonomy of a wife in India.
VI. CONCLUSION:
ROADMAP FOR THE FUTURE
The authors contend that if the
constitutional mandate were to be made applicable to the institution of
marriage the exclusion of marital rape from the definition S.375 of The Indian
Penal Code would in all probability be held as unconstitutional.
The authors have tried to establish
how in the absence of marital rape being viewed as an offence a decree of
restitution would facilitate such forceful sexual intercourse with an unwilling
wife. Although the objective behind restitution is not to give an unbridled
license to the husband to commit rape, the practical outcome of such a decree
results in a tacit recognition of coerced sexual intercourse as a part of
restitution. While it is conceded that a sexually harassed wife has recourse to
various remedies, she will still not be able to claim that she has been raped.
Hence the introduction of Constitutional tests in personal law is imperative to
give utmost importance to the sexual inviolability of a wife.
The most serious problem in
recognizing sexual abuse within the institution of marriage is that it
presupposes that the family structure is disturbed. Even though marital rape
has become a crime in majority of countries it has to be dealt with differently
in our country. Keeping in mind the actual motive behind a relief for
restitution, which is to give a married couple time to reconciliate and sort
out their differences, the authors propose the following suggestions to be kept
in mind if and when the Legislature decides to address this issue:
1.
India
is said to have a social order characterized by a strong family ties and a low
divorce rate. Hence, a blanket criminalization of family problems would only
result in the complete breakdown of a home.
2.
Indian
culture is vastly different from western society where marriage is a
contractual and temporary phenomenon. Considering the sensitivity of this
problem it is best advised that such matters should be dealt with by the family
court only and not a criminal court.
3.
While
conceding that marital rape is difficult to prove especially when both partners
are known to have voluntarily engaged in sexual activity in the past and the
issue of consent arises at a later point when there is non-consensual sex, it
is equally true that no such heinous act should go unpunished.
4.
Marital
rape should not be denigrated as a lesser offense merely because it occurs
within the precincts of a marital relationship.
5.
The
present need is for the legislature and the judiciary to actively intervene in
this area, by following the recommendations of the National Commission for the
Women, India[44] and the
draft bill suggested by them, which should be implemented along the lines of
the Canadian Model that combine marital rape with the offense of assault.
6.
Such
steps will fill in the lacunae present in the existing legislations, which
discourage women from reporting crimes of sexual assault against their
husbands, and otherwise curtail any effective exercise of right to judicial
redress.
7.
Hence
the urgent need to amend the existing provisions of the law with regard to
procedure evidence, punishment and conviction in order to ensure that sexual
assault is perceived and treated as a social evil, without tampering with the
laws of restitution and matrimonial reconciliation.
In conclusion marital rape should be
included within the definition of sexual assault, in order to ensure that
Indian society does not continue to tread on rights of women in the guise of
promoting social cohesion and protecting the sanctity of marriage. The makers of
the Constitution always fostered relations out of the free volition of the
parties and that is how it should be.
[1] State Of Rajasthan v. Narayan Kohli, A.I.R. 1992 SC
2003(India).
[2] Jill Elaine Hasday, Contest And Consent: A Legal
History Of Marital Rape, 88 CAL. L. REV. 1373 (2000).
[3] State v. Smith, 85 N.J. 193, 200, 426 A.2d 38, 41
(1981).
[4] Rene Augustine, Marriage: The Safe Haven For Rapists,
29 J. FAM. L. 559 (1991).
[5] Weishaupt v. Commonwealth, 315 S.E.2d 847, 850
(Va.1984). 7State v. Smith, 401 So.2d 1126, 1129 (Fla.Dist.Ct.App.
1981).
[6] Harwinder Kaur v. Harmanadar Singh Choudhary, A.I.R
1984 Del 66(India).
[7] Schwartz, The Spousal Exemption For Criminal Rape
Prosecution, 7 VT. L. REV.
[8] , 51 (1982).
[9] Id.
[10] R v. Hind, As Cited In Shroff, A. And Menezes,
N., Marital Rape As A SocioEconomic
Offence: A Concept Or A Misnomer!.
[11] Abigail Andrews Tierney, Spousal Sexual Assault,
Pennsylvania's Place On The Sliding Scale Of Protection From Marital Rape, 90
DICK.L.REV. 777, 781 (1986).
[12] Anne L. Buckborough, Family Law: Recent Developments
In The Law Of Marital Rape, ANN.SURV.AM.L. 343, 345 (1989). S F Waterman, For
Better Or Worse: Marital Rape, 15 N.KY.L.REV. 611, 613-14 (1988).
[13] DAVID FINKELHOR & KERSTI YLLO, LICENSE TO RAPE
SEXUAL ABUSE OF WIVES 1 (Henry Holt & Co 1st ed. 1985).
[14] M R Klatt, Rape In Marriage: The Law In Texas And The
Need For Reform, 32 BAYLOR L. REV. 109, 114 (1980).
[15] Swaraj Garg V. K.M. Garg, A.I.R. 1978 Del 296(India).
[16] Pamela L. Wood, The Victim, 11 AM.CRIM.L.REV. 335,
347-48 (1973).
[17] Diana E.H. Russell, Rape In Marriage 375-82 (1990) Of
The Women Raped By Their Husband, 52% Reported That The Long Term Effects Were
Severe, As Opposed To 39% Of Women Who Were Raped By Strangers.
[18] Section 375 Of Indian Penal Code, 1860 provides For
At Least 7 Years of Rigorous Imprisonment.
[19] Maria Pracher, The Marital Rape Exemption: A
Violation Of A Woman's Right Of Privacy, 11 Golden Gate U.L.REV. 717, 730
(1981).
[20] Supra note 4.
[21] Weishaupt v. Commonwealth, 315 S.E.2d 847 (1984).
[22] Geannie A. Morris, Note, The Marital Rape Exemption,
27 LOY.L.REV. 597, 598 (1981).
[23] People v. Liberta, 64 N.Y.2d 152. 474 N.E.2d 567, 574
(N.Y.1984) (Holding That the Supreme Court Of New York Recognized That The
Court In Griswold v. Connecticut, 381 U.S. 469 (1965), Only Extended The Right
Of Marital Privacy To Include Consensual Acts).
[24] Dhruv Desai, Sexual Harrassment and Rape Laws in
India, (Mar. 6, 2010) http://www.legalserviceindia.com/articles/rape_laws.htm.
[25] S.9, Hindu Marriage Act, 1955; S.22, Special Marriage
Act, 1954. The provision is different worded in the Parsi Marriage and Divorce
Act, 1936, but it has been interpreted in such a manner that it has been given
the same meaning as under the Hindu Marriage Act, 1955 and the Special Marriage
Act, 1954. However, the provision is different under the S.32, Indian Divorce
Act, 1869 but efforts are being made to give it such an interpretation so as to
bring it in consonance with the other laws. The provision under Muslim law is
almost the same as under the modern Hindu law, though under Muslim law and
under the Parsi Marriage and Divorce Act, 1936 a suit in a civil court has to
be filed and not a petition as under other laws.
[26] Paras Diwan, Law of Marriage And Divorce (4th
ed., Universal Law Publishing House).
[27] Hazel D. Lord, Husband and Wife: English Marriage Law
From 1750, S. CAL.
[28] Harwinder Kaur v. Harmanadar Singh Choudhary, A.I.R.
1984 Del 66(India).
[29] Id.
[31] Crabtree v. Crabtree, (No. 2) (1964) Australian Law
Reports 820 (10), Per Selby, J., At 821.
[32] Wheatley v. Wheatley, (1950) I K.B. 39 (9) Per Lord
Goddar CJ. At 43.
[33] Supra note 29.
[34] Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984 SC
1562(India).
[35] A.I.R. 1983 AP 356(India). 36A.I.R. 1984
Del 66(India).
[36] A.I.R. 1984 SC 1562(India).
[37] Supra note 26.
[38] Keshavananda Bharti v. State of Kerala, A.I.R. 1973
SC 1463(India).
[39] H.L.A. HART, THE CONCEPT OF LAW 94 (2d ed. Clarendon
Press, Oxford.)
[40] A.I.R. 1992 Bom 214(India).
[41] Id.
[42] (1999) 2 S.C.C. 228(India). 47(2003) 6
S.C.C 611(India).
[43] H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 491
(Universal Book Traders 2002).
[44] (Mar 11, 2010),
ncw.nic.in/.../Recommendations_on_amendments_to_the_laws_relating_to_rape_a
nd_related_ %20provsions.pdf.
Article Information
SEXUAL AUTONOMY OF A WIFE: THE INDIAN PERSPECTIVE
Authors: PRASHANT BHADU
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/10
- Issue 7
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International Journal for Legal Research and Analysis
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