INDRODUCTION
The development of contemporary criminal jurisprudence owes much to the conception of safeguarding human dignity, autonomy, and rule of law. Although Indian criminal law has undergone significant reform in spheres like sexual violence, protection of children, and cybercrime, there are certain spheres that are under-legislated—either because of social taboo, legislative apathy, or structural patriarchy. Two such key domains are necrophilia and marriage rape—crimes that constitute, respectively, the desecration of the dead and the violation of consent in marriage. Though morally repugnant and socially censurable, these crimes are under-governed or completely exempted by Indian law.
Necrophilia, though uncommon, is a type of extreme sexual deviation that constitutes sexual attraction to or sex with corpses. Legally, it poses deep questions regarding the post-mortem dignity of the human body, the principle of bodily autonomy following death, and custodianship over the dead. Indian law does not have anything to say on this. No section of the Indian Penal Code, 1860 (IPC) criminalizes necrophilia. Offenders could be prosecuted under general provisions like Section 297 (trespass against burial grounds) or Section 377 (unnatural offenses), although even the applicability of Section 377 has eroded in the wake of the 2018 Supreme Court judgment in Navtej Singh Johar v. Union of India, which legalized consensual homosexual sex.
Marital rape, however, that involves causing sexual intercourse with a spouse without consent, is a more common and institutionalized phenomenon. But it remains, for the most part, overlooked by Indian criminal law on account of the marital rape exception vested in the very definition of rape under Section 375 of the IPC. Under Exception 2 to this section, sexual intercourse by a man with his own wife, where she is not below the age of 18 years, is not rape. This provision has been largely condemned by constitutional lawyers, human rights activists, and experts as being outdated, sexist, and in violation of the right to equality (Article 14), dignity (Article 21), and bodily autonomy.
The non-criminalization of marital rape pragmatically reinforces the archaic and paternalistic belief that marriage grants permanent and unconditional sexual consent. This directly contravenes changing international human rights norms, wherein the majority of democratic nations have already criminalized sexual intercourse without consent within marriage. India is still one of the exceptions, and this has precipitated extensive deliberations, constitutional proceedings, and reform legislation.
This research paper is organized to present an exhaustive legal analysis of both necrophilia and marital rape, keeping in view the constitutional, statutory, ethical, and comparative international viewpoints. It commences with a discussion of the psychological and criminological roots of necrophilia before proceeding to discuss the legal position in India, including pertinent but inadequate provisions of the IPC. The article also explores comparative legal responses in other jurisdictions like the United States, the United Kingdom, and Germany, where necrophilia is outrightly criminalized. Indian case law, though rare because of under-reporting, is examined to underscore available judicial dispositions towards similar acts to necrophilia.
The discussion on marital rape starts by following its historical genesis, specifically the common law rule that “a husband cannot rape his wife.” This rule, based on Sir Matthew Hale’s 17th-century treatise, has long been abandoned by most common law jurisdictions. The Indian legal system still holds onto this exception. This article examines the significance of such a position on constitutional rights, gender justice framework in India, and international human rights commitments, specifically under CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women).
Judicial understanding of marital rape is also examined, such as the divergent opinions of different High Courts and the underway constitutional challenge in the Supreme Court. A thorough examination of Law Commission reports, the Justice Verma Committee report, and proposals from civil society is made to evaluate the reform momentum.
In addition, the paper examines the role of social institutions—law enforcement organizations, courts, medical facilities, media, and civil society—in either perpetuating or confronting these injustices. The social attitudes toward both necrophilia and marital rape are frequently covered in denial, shame, or ignorance, resulting in low rates of reporting, social stigma among survivors, and institutional complacency.
Moral and legal norms, including bodily integrity, posthumous dignity, and individual autonomy, form the basis of this analysis. Whether the victim is a dead person or a living wife or husband, withholding consent in either context constitutes a gross violation of dignity and personhood. The article applies this moral framework to advocate legislative overhaul on an integral scale, such as introducing a particular penal provision on necrophilia and abolishing the exception of marital rape under Section 375 IPC.
Lastly, the paper suggests model clauses, draft provisions, and suggestions for sensitization and reform of institutions to ensure that the law not just punishes such offences but also provides a climate in which victims of such offences can approach justice unafraid and free from social stigma. The paper ends by confirming that the Indian legal system must up the ante to serve and protect the most vulnerable—be it dignity in death or consent in marriage.
Concept and Psychology of Necrophilia
Necrophilia, which is a term formed from the Greek terms ‘nekros’ standing for dead and ‘philia’ standing for love or affection, is a pathological urge or penchant for corpses. Psychologically, necrophilia is one of the most deviant forms of paraphilia, where sexual pleasure or satisfaction arises from activities with the dead. Sigmund Freud was one of the first thinkers to examine necrophilia in the context of libido and death drive (Thanatos). Yet, recent psychological and psychiatric literature places necrophilia as a paraphilic disorder, and usually associates it with antisocial behavior, serious mental illness, or sociopathy.
Several typologies of necrophilia were put forward by psychologists. The most referenced typology is by Rosman and Resnick (1989), which categorized necrophiliac behavior into three types:
- Necrophilic Fantasy – Entailing fantasizing with sex with dead bodies without actually doing so.
2. Regular Necrophilia – Whereby people actively pursue access to dead bodies for sexual activities.
3. Homicidal Necrophilia – The most serious and criminal, where people murder in order to get a dead body for sexual gratification.
Research indicates that necrophilia tends to occur with other psychiatric disorders, including psychosis, personality disorders, and delusions of paranoia. In forensic psychiatry, perpetrators who exhibit necrophilic behavior are typically evaluated for mental illness or capacity at the time of the offense, particularly in jurisdictions where “insanity” is an available defense.
The psychological underpinning of necrophilia raises deep ethical concerns. The corpse, being devoid of consciousness or autonomy, becomes a passive object. The question arises: can there ever be implied consent from a dead person? In some traditions, cultural and religious beliefs prohibit even touching a corpse beyond ritual purposes, let alone desecrating it.
From a criminological point of view, necrophilic offenses are usually hard to trace. Most of them are committed in places like mortuaries, cemeteries, and undertakers—where the perpetrators could easily have access because of working roles. This has provoked lots of cries for better control of handling corpses, monitoring mortuaries, and penal measures against such behavior.
In addition, necrophilia is not just a psychological deviation—it is a great ethical and legal offense. Objectification of the dead body questions dignity in death, a notion that has gained greater prominence in human rights thought. Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty, has been interpreted by courts to encompass dignity in death and hence provide legal basis for criminalizing acts of necrophilia on the basis of dignity-based jurisprudence.
There is no Indian statute criminalizing necrophilia. The offenses are rather prosecuted under sections like Section 297 (Trespass to a burial place), Section 377 (unnatural offences) (now partially repealed for consenting adults), and Sections 201 and 202 for proof tampering. The absence of direct penal provision leads to low prosecutorial success, under-reporting, and legal vagueness.
The necessity of legal certainty, coupled with a better understanding of the psychological basis of necrophilia, highlights the imperative for a clear statutory identification of the offence. Legislators need to address both the mental health aspect of such offenders and the deceased’s rights after death to bodily integrity and dignity.
Legal Recognition of Necrophilia in Indian Law
Necrophilia, although one of the most odious and morally abhorrent acts, receives no specific legal mention in Indian criminal law. The Indian Penal Code, 1860 (IPC), the major enactment covering criminal offenses in India, has no particular provision making sexual intercourse with a dead body an offense. This lack leaves a large legal void and complicates prosecution of perpetrators under relevant and suitable charges, hence creating critical issues in the protection of posthumous dignity and sanctity of the human body after death.
Existing Provisions Pertaining to Necrophilia
Lacking a direct provision that criminalizes necrophilia, the law enforcement agencies are forced to apply some loosely related provisions of the IPC. The most commonly quoted provisions are as follows:
Section 297 IPC – Trespassing on burial places, etc.
This act makes trespassing into any place of burial or worship an offence with the intent to outrage the feelings of any individual or to insult any religion. The intent here is on the sentiment of the community and not specifically on the desecration of the body itself. It therefore does not specifically target the main offence of sexual desecration of a dead body but only addresses the offence as being one of religious insult or public nuisance.
Section 377 IPC – Unnatural Offences (Pre-2018)
Before its partial reading down in Navtej Singh Johar v. Union of India (2018), Section 377 made “carnal intercourse against the order of nature” an offense, which was usually resorted to in cases of bestiality or necrophilia. Following decriminalization of homosexual acts between consenting adults, Section 377’s ambit has become limited, although technically it still covers non-consensual acts, such as involving minors, animals, or perhaps corpses. The juridical clarity on whether Section 377 still applies to necrophilic acts in the post-Navtej Singh Johar era is missing. Section 201 IPC – Causing disappearance of evidence
Where the dead body is violated and disposed of in a way to cover the act, Section 201 can be pressed into service. This is, however, a secondary or procedural offence and not the actual offence of necrophilia.
Section 354 IPC – Outraging the modesty of a woman
This part is not apposite for the most part in cases of necrophilia since modesty, as understood under Indian law, is a trait ascribed to a living female. As a dead person cannot complain, the provision is redundant under the laws of necrophilia.
These sections, while permitting partial prosecution, are legally insufficient to address the multi-faceted nature of the offence. They fail to encapsulate the sexual nature of the crime and highlight the desecration of bodily dignity after death. The lack of a specific statute results in unequal legal treatment and mostly ends in feeble prosecutions or acquittals.
Indian courts have not specifically addressed the question of necrophilia in a comprehensive sense, owing to the infrequency of such cases and the lack of a statutory definition. Nonetheless, the judiciary has set the stage well for the establishment of the right to dignity after death by virtue of a series of landmark rulings. For example:
Pt. Parmanand Katara v. Union of India (1989)
The Supreme Court ruled that the right to life under Article 21 of the Constitution also constitutes the right to die with dignity. Though the case mainly touched upon the rights of accident victims and emergency health care, it reinforced that dignity would go beyond death. This rationale provides the constitutional foundation to criminalize offenses such as necrophilia that defile the dead.
Ashray Adhikar Abhiyan v. Union of India (2002)
This case identified the necessity to treat the bodies of unclaimed dead people with respect. It supported the argument that the law’s safeguards need to include all bodies, even if no relative or claimant exists. Ramsharan Autyanuprasi v. Union of India (1989)
The Court noted that the right to dignity is not lost with death, and what happens to dead bodies must express the same respect that the living are owed.
Even with these advances in the law made by the judiciary, legislative inaction renders these rights aspirational instead of enforceable. The courts have consistently demonstrated a tendency to read Article 21 broadly, but they cannot enact law. Hence, there has to be a clear and precise statutory provision declaring necrophilia criminal and making provisions for punishment as per the seriousness of the offence.
Comparative Jurisprudence
Various other countries have directly criminalized necrophilia, offering strong legal models for India to follow:
United Kingdom: The Sexual Offences Act, 2003, section 70 criminalizes the sexual penetration of a dead body, punishable with imprisonment of up to two years. The legislation understands that a dead body cannot consent and that these acts are in themselves degrading and offensive.
Germany: The German Criminal Code (Strafgesetzbuch) of Section 168 criminalizes disturbing the peace of the dead. The statute makes sexual acts with a corpse a grave offence against public decency and human dignity.
United States: Necrophilia is a criminal offense in most states of the United States, such as California, Florida, and Arizona, where it is a felony. In other states, the offense is handled as a crime against abuse of a corpse or against lewd acts with a corpse.
Sweden and Norway: Necrophilic acts are dealt with as offenses against public decency and respect for the dead and punishable under distinct penal provisions.
These global precedents unmistakably demonstrate that legal explicit recognition of necrophilia is neither new nor contentious in advanced legal systems. The majority of democratic countries accept that the dead have a right to respect and dignity, and their bodies cannot be violated.
The Case for Legal Reform in India
In the light of jurisprudential favour and international opinion, there is a strong case for Indian legislatures to enact a fresh penal provision criminalizing necrophilia as a separate offence. The Law Commission of India has so far not brought out a report on the subject, indicating the necessity for advocacy, legal thought, and parliamentary initiative.
A draft provision may read as follows:
Section 63 – Sexual Violation of a Dead Body
Any person, with intent to gratify sexual desire, has sexual intercourse or causes any act of sexual penetration, contact, or simulation with a dead human body shall be imprisoned for a term extending to seven years, and shall, in addition, be liable to fine.
Explanation: For the intention of this section, ‘sexual activity’ means penetration, fondling, oral contact, or some other act for sexual gratification.
This provision would create the existing legal vacuum, provide certainty in prosecution, and declare the legal sanction of the dignity of the deceased.
The lack of a standalone legal provision for necrophilia in Indian legislation is a shocking omission in a system that otherwise tries to maintain dignity, decency, and human rights.
While social taboos and the infrequency of such crimes do go some way in explaining legislative inertia, the basic premise of criminal law—that it has to provide protection against the worst possible harm—dictates remedy of this lacuna. The enactment of a statutory provision criminalizing necrophilia, coupled with forensic training, investigative guidelines, and judicial luminance, is imperative for a comprehensive, contemporary, and rights-based legal system in India. While India’s legal system has so far failed to specifically deal with necrophilia as a separate criminal offense, some nations across the globe have been proactively legislative in defining, criminalizing, and penalizing acts of necrophilia.
Comparative jurisprudence, therefore, sheds light not just on the heterogeneity of legal reactions to such acts but also on changing norms of human dignity, consent, and posthumous rights. The experience of other jurisdictions regarding necrophilia can be instructive to Indian legislators in lacuna-filling in the law.Comparative jurisprudence indicates that most nations on legal traditions—common law, civil law, and mixed ones—treat necrophilia as a serious criminal offense. Some, such as the UK and Germany, have passed particular enactments criminalizing the offense, while others utilize more general provisions for their prosecution. What they share is a dedication to maintaining the dignity of the deceased, continuing to make consent a central tenet in sexual law, and retaining standards of decency in society. India, by comparison, falls short of legally defining necrophilia as a separate offence. Comparative experience bears out that the lack of legal recognition not only desecrates the dignity of dead individuals but also represents a failure of India to commit to a complete and humane criminal justice framework. India needs urgently to learn from global best practices and include a special provision criminalizing necrophilia in its penal code.
The incidence of sexual offenses against corpses in India is increasing at a very fast rate. Despite the fact that one or two such cases reach the doorsteps of courts annually, our judicial system has no laws criminalizing and penalizing this paraphilia; there has never been any definition of necrophilia in any legislation, and this causes a great inconvenience for the judges to punish the offender accordingly and keep the dignity of the deceased person intact.
The Nithari case
One of such chilling instances of necrophilia with murder, cannibalism, and organ trade was in 2006, popularly known as “The Nithari Case.” It was the first case of paraphilia which became a point of discourse for the whole country and most people got exposed to such newinous crimes which were otherwise kept secret.
Here, the accused individual, Moninder Singh Padher, and his servant, Surinder Koli, were apprehended for different abominable crimes: causing the murder of several women and children, sexual intercourse with dead bodies of victims, consumption of parts of dead bodies, and organ trafficking. Different pornographic CDs and naked photos of the victims were recovered from the residence of the accused.
The Palghar case
In the COVID-19 2020 lockdown, a distressing case happened in Palghar Maharashtra where a shop owner (Shiva Choudhary) killed a 32-year-old female customer in a fight over the cost of products at his shop.
The shopkeeper slit her throat after he killed her and raped her dead body and left her half a kilometre from his shop. He took the questions and confessed his act of raping and killing the woman and also added that as he had been away from his wife for more than one year, he was seized with a feeling of urge to kill her. He was arrested immediately and examined by a medical examiner for potential disturbances of the mind.
The Jalandhar case
A recent case of necrophilia in December 2023 in Jalandhar involved where an e-rickshaw driver aged around his early thirties was arrested on the charge of killing a 22-year-old nurse. The suspect admitted to having murdered the nurse by kneeling down on her neck against e-rickshaw’s seat, raped her lifeless body later, and returned to the crime scene after three hours to perpetrate the gruesome act again. The suspect also claimed to have targeted two other women prior to this crime. He claims to have committed the crime when he was drunk.
The Karim Ganj Hospital Case
A shocking incident of paedophilic necrophilia came to light in April 2024 from Assam. As per reports, the lifeless minor girl had committed suicide by consuming poison. Following her death, the police and a magistrate came to the spot to check and take away the body of the minor, and afterwards the body was shifted to the civil hospital in Karim Ganj, where it was kept in a mortuary for a post-mortem. The situation became worse when the police discovered that the post-mortem body of the girl was raped in the post-mortem room. During the investigation, the police apprehended the perpetrator, Manju Rabi Das, who works as a hospital sweeper, and he confessed to raping the dead body of the minor girl. The case remains under investigation. Legal rights of dead – The Indian Constitution, in Article 21, solemnly embodies the fundamental right to life and liberty of person for all the citizens of India.
The right is by no means restricted within the realm of living existence but transcends the physical limits of life itself. In the pioneering case of Parmanand Katara vs. Union of India, the Supreme Court of India read Article 21 and explained that it encompasses the right to live life with dignity as an inherent fundamental right. The right, as explained by the court, does not cease with the death of an individual but persists even after death. Understanding Marital Rape
Marital rape, usually defined as unlawful sexual intercourse by a husband with his wife, has long been in the shadow of patriarchal legal frameworks.
It is one of the most egregious intrusions on bodily autonomy and human dignity and yet was centuries ago either dismissed or actively endorsed by the law. The notion that marriage implies and irrevocable consent to sex has strong roots in socio-legal customs, especially in the Anglo-Saxon legal tradition, that influenced the laws of most nations, including India. This part discusses the historical development of laws against marital rape, worldwide approaches to criminalization, the influence of feminist legal theory, and the increasing consensus on international human rights law towards making marital rape an offence. A. The Hale Doctrine
The basis of the marital rape exception in common law is traced back to 17th-century English jurist Sir Matthew Hale, who in his 1736 treatise Historia Placitorum Coronæ:
“Husband cannot be guilty of a rape committed by him on his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself up to her husband, consent which she cannot revoke.”
This doctrine effectively justified forced sex in marriage, based on the notion that a wife’s body became a husband’s property when they were married. The notion of coverture, where a woman’s legal identity was fused with her husband’s, further buttressed this belief. According to this system, marital consent was regarded as permanent and unchangeable.
British colonial rulers took English rules of law with them, among which were Hale’s rule of marital rape immunity. Later, it was enshrined as part of Indian criminal law under Section 375 of the Indian Penal Code (IPC), 1860, which originally provided that sexual intercourse by a man with his wife, if she was not below 15 years of age, did not constitute rape.
Even though the age was subsequently increased, the essential exception clause continues. Today, Exception 2 to Section 375 IPC clearly dictates:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Even as India has constitutional protections of equality and dignity, the colonial legislation continues to refuse the married woman the fundamental right to refuse consent.
In the 20th and early 21st centuries, most countries started reviewing the marital rape exemption against changed human rights standards, gender equality, and feminist jurisprudence.
United Kingdom: The watershed in UK law was the House of Lords ruling in R v. R (1991), in which the court ruled that a husband could be convicted of raping his wife. This ruling decisively spurned Hale’s doctrine as antiquated and incompatible with contemporary thinking on marriage and consent.
United States: While initially adopting the common law exemption, in the course of time, all 50 American states have abolished or restricted the marital rape exemption. Even so, the level of criminalization and punishment continues to greatly differ between states.
Canada: Marital rape was criminalized in Canada through amendments to the Criminal Code in 1983, deleting any legal differential applicable to married and unmarried women when issues of consent were involved.
Australia and New Zealand: Both nations overruled the marital rape exception in the early 1990s. In Australia, the notable case of R v. L (1991) confirmed that marriage is not a permit for rape.
South Africa: After its post-apartheid constitutional reconstruction, South Africa made marital rape a criminal act and prioritized the safeguarding of bodily autonomy for everyone.
Pakistan: Marital rape is not specifically criminalized by law in Pakistan. Similar to India, it has inherited colonial legal traditions that still influence its penal provisions.
Bangladesh: Marital rape is still exempted from criminality except when the wife is less than 13 years old, showing the same approach to law as India.
Sri Lanka: Marital rape can only be criminalized when the couple is separated by the court, showing limited acknowledgment of the problem.
Marital rape has been criminalized in countries like Sweden, Norway, Denmark, and Germany for many years, and these states tend to punish it more harshly because of the violation of trust involved.
The criminalization of marital rape is also gaining international human rights law status as a requirement. Many treaties, conventions, and declarations emphasize the need to identify and penalize all sexual violence, regardless of marital status.
A. CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)
Article 1 and 2 of CEDAW bind states to end all forms of discrimination against women, including in family and marriage. The CEDAW Committee has consistently urged state parties to criminalize marital rape.
India ratified CEDAW in 1993 but made reservations to provisions regarding family law, thus restricting its application to reforming marital rape.
B. UN General Assembly Resolutions
There are various UNGA Resolutions that have stressed the importance of eliminating violence against women, including sexual violence in marriage. Some of them are:
Resolution 48/104 (1993) – Declaration on the Elimination of Violence Against Women
Resolution 61/143 (2006) – Strengthening efforts to end all types of violence against women
C. Universal Periodic Review (UPR)
In the UN’s Universal Periodic Review of India, various nations like Germany, Norway, and Canada also called on India to make marital rape a criminal offense under human rights obligations.
Feminist theorists have also contended that marital rape is the result of patriarchal domination and structural injustice. The exclusion from rape legislation:
Entrenches the idea that women do not have control over their own bodies under marriage, Nourishes gender violence,Deprives the victim of legal recourse and dignity. Influential feminist theorists such as Catharine MacKinnon and Andrea Dworkin believe that legal systems by their very nature are determined by male dominance, and marital rape exceptions are an indication of that bias.
In India, feminist activists Vrinda Grover, Flavia Agnes, and Indira Jaising have been at the forefront of advocacy initiatives challenging the marital rape exception and urging gender-sensitive criminal reform.
In spite of increasing international agreement, resistance to criminalizing marital rape is still strong in various jurisdictions, including India. Some of the arguments put forth are:
- Risk of misuse of the law by women.
- Encroachment into the privacy domain of marriage.
- Protection of the institution of marriage.
- Fear of false allegations and destruction of domestic peace.
These are arguments based upon an outdated, patriarchal view of marriage as a site beyond the reach of legal scrutiny, instead of a mutual respect- and autonomy-based partnership.
The Indian government has always opposed demands to make marital rape a criminal offense. In 2017, in the course of proceedings in the Delhi High Court (RIT Foundation v. Union of India), the Union Government had submitted an affidavit claiming that criminalizing marital rape would “destabilize the institution of marriage” and “could be misused.”
Nonetheless, civil society groups, the judiciary, and legal academics persist in advocating change.
The Justice Verma Committee Report of 2013, established following the Nirbhaya gang rape, highly recommended abolishing the marital rape exception, but its recommendations were not implemented.
The global development of marital rape law demonstrates an unmistakable pattern: the ancient exemption by reason of marital status is being eroded quickly in favor of a rights-oriented, consent-based legal system. Most states have come to realize that marriage is no bar to consent, nor is it a cloak of immunity from prosecution. India, as much as it had protected these values of equality, dignity, and autonomy of the body under its Constitution, still retains an archaic provision denying married women elementary legal safeguard against sexual assault. As global standards evolve, and constitutional morality assumes the role of a guiding force in Indian law, it is increasingly necessary to eliminate the marital rape exception of Section 375 IPC. The push for change is not only in international compacts or courtrooms, but in pushing back against prevailing social and cultural norms that continue to view marriage as a license for impunity.
The fundamental provision that is the definition of rape is contained in Section 375 of the Indian Penal Code. According to the 2013 Criminal Law Amendment Act, Section 375 contains a broad definition of rape, including a wide range of non-consensual conduct other than penile-vaginal penetration.
The applicable Exception 2 to Section 375 IPC is that:
“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
This provision protects a man from criminal prosecution for raping his own wife. This implies that a husband cannot be prosecuted for rape, whether or not the intercourse was consensual, except if the wife is younger than the prescribed age.
In Independent Thought v. Union of India (2017), the Supreme Court read down Exception 2, increasing the age from 15 to 18 years, bringing it in consonance with the age of consent and child marriage laws. The Court ruled that intercourse with a wife under the age of 18 constitutes statutory rape, even if the marriage is valid. But the general marital rape exemption remains for adult wives.
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732
The Court discussed the question: would a husband forcing his wife to perform oral sex constitute rape under section 376 of the IPC?
The arguments of the court were that the marital rape is not criminalized even now in our country because the Parliament is reluctant that it will destabilize the marriage institution.
An immoral wife may use it as an effective tool or weapon to harass her husband by falsely and baselessly accusing him. However, there are check gates in the criminal system to detect and investigate false or wrongful marital complaints, and any one who gives rise to false and malicious complaints can be dealt with as per law. Marital rape cannot be ignored only because of this apprehension. Indian laws confer rights to liberty and life on women but not her body, in the case of marriage. Assault by husband on wife would constitute an offence under the IPC but if the same husband forces his wife for sexual intercourse, then the husband would be guilty of assault but not of an offence of rape only because there exists a valid marriage. The court found three forms of marital rape to be broadly prevalent in the society:
Battering rape: It is a type of marital rape where women experience both sexual and physical violence throughout the course of the relationship in multiple ways.
A few examples are given below:
A few of these examples are of those in which the wife is beaten during the rape, or the rape can be done after a physically violent situation where the husband wants to compensate and forces his wife into having sex against her will. In most cases, the victims fall into this above-given category. Force only rape: In this form of marital rape, husbands employ only that level of force, as it is needed to coerce their wives. In these instances, battering might not be a characteristic, but women who refuse sexual intercourse often have to endure such attacks.
Obsessive rape: Attacks in obsessive rape are comprised of obscene sex and/or brutal torture and are usually most often brutal in nature. It has also been termed as sadistic rape.
Independent Thought vs Union of India (2017) 10 SCC 800
The issue before the court was whether sexual intercourse between a boy and his wife who is a girl between 15 to 18 years of age amounts to rape?
The exception 2 to Section 375 of the Indian Penal Code, 1860 (the IPC) is not quite hopeful on this score, but the court was presented with the suggestion that sexual intercourse with a girl below 18 years is rape irrespective of whether she is or not married.
The unnatural discrimination does a disservice to the spirit of Article 15(3) of the Constitution, and is against Article 21 of the Constitution. Marriage of children was prohibited by enacting the Prohibition of Child Marriage Act (PCMA) in 2006 as a beginning step in this connection, but no subsequent amendment was made in Section 375 of the IPC, as it existed in 2006, to de-criminalize rape of a girl child within marriage. A 15- to 18-year-old married girl can be a victim of “aggravated penetrative sexual assault under The Protection of Children from Sexual Offences (POCSO) Act, 2012 but she can never become the victim of rape under the IPC” if raped by her husband since the IPC refuses to recognize such an assault as rape. The court directed to strike down Exception 2 to Section 375 IPC to the extent that it is applied to a girl child below 18 years on the grounds enunciated below:
1. It is arbitrary, tyrannical and unfair, unjust, and unreasonable. It violates the rights of the girl child by running counter to Articles 14, 15 and 21 of the Constitution of India;
2. It is discriminatory and against Article 14 of the Indian Constitution and;
3. It is contrary to the provisions of POCSO Act.
After looking into the history of judgments by the courts on infliction of grievous hurt by the husband on the wife, the court in Queen Empress v Haree. Mythee observed that for married women the law of rape did not apply between husband and wife after 15 years, even if the wife is over 15 years, the husband cannot ignore her physical welfare.
In Emperer v Shabu Mehrab, the husband was held guilty under Section 304A IPC for causing the death of his child-wife by rash or negligent act of intercourse with her.
In State of Maberashtra y Mediokan Marayao Mardiuar, SC exercised the right to privacy over their body. A prostitute was held entitled to a refusal of sexual. intercourse. It is disheartening to learn that all rapes by strangers have been criminalized and all females except wives have been given the right to privacy over their body.
In Sree Kumar v Pearly Karun, HC recorded that as the wife is not living separately from her husband under decree of separation, even if she is subjected to sexual intercourse by her husband against her will or without her consent, offence under Section 376A IPC shall not be attracted.The Judiciary seems to have left totally to its discretion the idea that rape in marriage is a impossibility or that the honour of raping a woman can be saved by marrying her off to the rapist.Rather than making the wife a slavish follower of the husband’s every whim, more so his sexual ones, it is supposed to thrive upon mutual respect and trust.
How can law ignore such a huge grieve towards the fundamental right of freedom of every married woman, right over her own body, in order to protect her from any abuse? PIL to criminalize marital rape Certain believe that Exception 2 of Section 375 is unjust and discriminatory since Marital Rape is at least a crime as is murder, culpable homicide or rape in se and this generates discrimination between married and unmarried women so this was challenged in Delhi High Court by petitions. Petitions were those of All India Democratic Women’s Association, RIT foundations, forum to initiate activity of men and many others.
Petitioners pleaded to retain the said Exception unconstitutional. Against it was an NGO-Men’s Welfare Trust of the man victimized by the purported abuse of gender law who contended that the case touches upon huge numbers of men at the hands of women who falsely accuse rape and domestic violence. Plea also used the statistics of National Crime Record Bureau (NCRB), which found that 62,000 married men commit suicides annually, nearly double the number of women suicides, and marital issue was the single largest reason behind these suicides.The PIL had sought that there should be a well-defined guideline for the case registration in relation to marital rape on framed guidelines and laws so that accountability, responsibility and liability of the related authorities can be ascertained, but HC did not accept the petition stating that it is the province of a legislature and not judiciary.
It is highly unfortunate to witness the attitude of the government and the judiciary towards marital rape revealing the nature of the patriarchal Indian society. Due to virtual impossibility of proving marital rape, criminalization would be just another load on the already clogged legal system. Indignant, disgruntled, retaliatory wives would accuse their unsuspecting husbands of the crime of marital rape.There is implied consent to sexual intercourse in marriage.
Marital rape law would destroy many marriages by precluding reconciliation. A survey by the Joint Women Programme, an NGO revealed that one in every seven married women were raped by their husband at least once. They do not report these rapes since law does not favor them. It can be demonstrated that criminalization of marital rape, acts as a step to accept rape in marriage as a criminal offence and would act as a deterrent upon future rapists husbands. Women filing false cases, it can be said that if it is hard to prove a case of rape in marriage, proving a false case will even be harder. Sexual intimacy being love and not the same as rape. Such a marriage in which the husband rapes his wife is lost anyway. Denial of justice and unequal protection to uphold marriages can be an unfair goal of law. Suggestions for Change Marital Rape should be enacted by Parliament as an offence under the Indian Penal Code. The penalty for marital rape should be the same as that provided for rape under Section 376 of the Indian Penal Code. That the parties are married should not lessen the sentence.
REFERENCES AND BIBLIOGRAPHY
- Indian Penal Code, 1860 (IPC)
- Constitution of India, Article 14 (Right to Equality)
- Constitution of India, Article 21 (Right to Life and Personal Liberty)
- Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (Supreme Court judgment decriminalizing consensual homosexual acts)
- Pt. Parmanand Katara v. Union of India, AIR 1989 SC 2039 (Right to die with dignity)
- Ashray Adhikar Abhiyan v. Union of India, AIR 2002 SC 169 (Respect for bodies of unclaimed dead)
About Author
Anannya Mohanty , a law student at Symbiosis Law School, has a keen interest in Alternative Dispute Resolution, Corporate Law, and Constitutional Law. With a strong passion for legal research and writing, Anannya Mohanty actively engages in exploring diverse legal issues and emerging trends. Always enthusiastic about opportunities that involve in-depth analysis, they believe that consistent legal writing significantly enhances knowledge, sharpens critical thinking, and builds a deeper understanding of complex legal frameworks essential for a well-rounded legal education.