MATRIMONIAL RAPE by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad

MATRIMONIAL RAPE—EXEMPTION FROM PROSECUTION FOR HUSBAND—STATE OF THE LAW IN ENGLAND, SCOTLAND  AND INDIA

 

(Published in Criminal Law Journal, Nagpur, 2005 at pages 357 to 368)

 

I wish to begin this Article with the two most important legal principles found in English and Indian Law.

 

In Indian Law, the legal principle, in the form of Legislative Provision, is given in the Exception in Sec. 375 of The Indian Penal Code, 1860  (hereinafter referred to as ‘The Code’)

 

The above Exception reads as follows:

 

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.   

 

In England, the principle, in the form of Judicial Dictum, was given by Chief Justice Sir Matthew Hale when he said that  “By their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract”  in the year 1736. 

 

How far these two ancient legal principles are still relevant in this Age of Modern Marriages will be the main focus of this Article.

 

 

  Part I 

                                           

 STATE OF THE LAW IN ENGLAND

 

Any aspect of the law relating to Rape is sure to evoke controversy. 

 

The marital rape exception has been described as “outrage to human conscience and reason in the enlightened country in our time”. 

 

We can observe from the English Case Law  that the cases relating to the prosecution of a husband for rape upon his wife has come before the Courts when there were irreconcilable matrimonial problems between the spouses leading to their estrangement.  

 

Coming to the position in England, earlier to the Sexual Offences Act, 1956, (Referred to as ‘The SO Act’) Rape  is an offence at Common Law. In view of the criticism with the decision in Morgan  by the House of Lords, in 1976,  the law was codified. Then in 1994, through Sec.142 of the Criminal Justice and Public Order Act, 1994, a new definition of Rape  was brought into force by replacing the existing Sec. 1 of the SO Act, 1956. 

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