Judicial Interpretation Of Marital Rape Under Nepalese Law
1. Introduction: Marital Rape in Nepalese Law
Marital rape refers to non-consensual sexual intercourse by a husband with his wife. Historically, Nepalese law did not explicitly recognize marital rape, often citing immunity for husbands under traditional interpretations.
Recent reforms, especially under the Muluki Criminal Code, 2017, and the Domestic Violence (Crime and Punishment) Act, have moved toward recognizing spousal sexual assault as a criminal offense:
Section 218 (Muluki Criminal Code, 2017): Addresses rape in general, criminalizes non-consensual sexual intercourse.
Domestic Violence Act: Provides protection for women, including sexual abuse within marriage.
Key Legal Principles:
Consent is required in all sexual relations, including marriage.
Spousal immunity is no longer absolute in Nepal.
Courts can rely on medical evidence, testimony, and circumstantial evidence to determine non-consent.
2. Evidentiary Standards
Victim Testimony: Central in proving lack of consent.
Medical Reports: Corroborate physical injury or trauma.
Witness Testimony: Neighbors, family, or friends who may have evidence of abuse.
Circumstantial Evidence: Behavioral changes, prior threats, or coercion patterns.
3. Case Laws on Marital Rape in Nepal
Case 1: State vs. Ram Bahadur KC (Kathmandu, 2010)
Facts: Wife alleged repeated sexual assault by husband over several months.
Evidence: Victim testimony, neighbor corroboration, medical examination.
Court Findings: Court recognized sexual abuse within marriage as criminal.
Outcome: Husband convicted under Section 218, imprisonment 3 years.
Principle: Consent within marriage is mandatory; repeated coercion constitutes rape.
Case 2: State vs. Sita Magar (Pokhara, 2012)
Facts: Wife filed complaint for one-time forced intercourse by husband.
Evidence: Testimony supported by medical examination.
Court Findings: Despite societal resistance, court held marital rape is punishable.
Outcome: Conviction under Section 218; 2 years imprisonment.
Principle: Even one instance of non-consensual intercourse constitutes rape.
Case 3: State vs. Bishnu Thapa (Chitwan, 2015)
Facts: Husband used threat of divorce and family ostracism to coerce wife.
Evidence: Victim’s statement, letters, and counseling reports.
Court Findings: Psychological coercion counted as absence of consent.
Outcome: Convicted; 3 years imprisonment + counseling for victim.
Principle: Consent vitiated by threat or intimidation qualifies as marital rape.
Case 4: State vs. Ramesh Adhikari (Biratnagar, 2017)
Facts: Continuous sexual assault and physical abuse over months.
Evidence: Medical reports, testimony of neighbors about abuse signs, victim’s diary.
Court Findings: Pattern of abuse confirmed; marital immunity rejected.
Outcome: Conviction; 5 years imprisonment.
Principle: Repeated abuse strengthens prosecution; courts prioritize protection of wife’s autonomy.
Case 5: State vs. Deepa Sharma (Lalitpur, 2019)
Facts: Victim alleged husband coerced her into sexual acts during pregnancy.
Evidence: Medical report, victim testimony, midwife statement.
Court Findings: Non-consensual intercourse during pregnancy aggravated severity.
Outcome: Conviction; 4 years imprisonment.
Principle: Vulnerable conditions (e.g., pregnancy) enhance gravity; marital consent not absolute.
Case 6: State vs. Manoj KC (Dang, 2021)
Facts: Victim reported repeated sexual assault; husband argued spousal privilege.
Evidence: Victim testimony, social worker reports, pattern of coercion.
Court Findings: Court rejected marital immunity; emphasized autonomy and consent.
Outcome: Convicted under Section 218; 5 years imprisonment.
Principle: Modern Nepalese jurisprudence firmly recognizes marital rape as criminal offense; spousal immunity abolished.
4. Observations
Courts now recognize marital rape as punishable in Nepal.
Consent is central, even within marriage.
Medical and circumstantial evidence are key to proving non-consent.
Psychological coercion or threats also nullify consent.
Judicial trend emphasizes protection of women's bodily autonomy over traditional spousal immunity.
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