Fostering Equality: Examining The Possibility Of Criminalising Marital Rape In India
Author : Shubhada Sonwalker & Bhagyashri Kabirpanthi
In India, marriage is considered a sacred religious institution and therefore is governed by the personal laws of the respective religions including both codified and uncodified law. It is regarded as more of a religious sacrament and social responsibility than a contract, therefore the importance of its contractual nature differs from religion to religion.
Currently, the institution of marriage and its foundation is in issue, in the ongoing Writ Petition filed by RIT Foundation and All India Democratic Women’s Association (AIDWA) challenging Exception 2 of Section 375 of Indian Penal Code 1860, which exempts sexual intercourse by the husband during the marriage without the consent of the wife not being under the age of 15 years.
Historically, both the age of consent to marriage and the exception of marital rape find their roots in the colonial concept of women being the property of the father before marriage and later that of the husband.
In India, the age limit of consent to sexual intercourse although 18 years for every girl classifies only two groups of married women that are (1) those under 15 years of age and (2) those who are already separated from their marriage. Thus, the legislature does not consider "rape" as "marital rape" unless a bride is below 15 years or is separated from her husband.
In 2017, the Supreme Court in the case of Independent Thought v. Union of India, changed the age limit from 15 to 18 years considering it to be an unnecessary and artificial distinction between a “married girl child” and an “unmarried girl child” as it had absolutely no rational nexus with the objective and was violative of Art 14, 15 & 21 of the Indian Constitution and Protection of Children from Sexual Offences Act 2012.
Nevertheless, the scope was limited to sexual intercourse with the minor wives only, thus, eliminating any superfluous categorization of the girl child.
The current cognizance of the aforesaid petition by the apex court is the first time that an Indian Court has acknowledged and addressed the issue of “marital rape” in its entirety.
VIOLATING THE CONSTITUTION & BESTOWED RIGHTS VIS-À-VIS CONTENTION OF THE PETITION
The filed petition questions not only the influence of pre-colonial laws on modern India but also a woman’s “right to say no” regardless of her marital status. As, in the aforesaid landmark judgement, it had been observed “that the rapist remains a rapist and marriage to the victim does not alter his status”; which is incidentally contradictory to the provided exemption.
Henceforth, it has raised a big question about the foundation of marriage as recognized in the country, which traditionally comes with several expectations and obligations including a sexual relationship that is presumed to be a moral, social and legal right.
Simultaneously, the Indian Constitution's Art.14 and Art. 21 grant equal rights to women including the right to bodily integrity, and free expression. However, exception 2 of Sec.375 expressly chooses to deny the same right to married women.
The petition asserts that Exception 2 lacks relation to the objective of Sec.375, which aims to criminalise non-consensual sex. It suffers from manifest arbitrariness and irrationality. Since it provides immunity to the man for having non-consensual sexual intercourse with his wife but punishes and regards the same act as a heinous crime without being in the marriage. Thus, choosing to classify the crime of rape based on the marital status of the victim and in so doing denying the woman’s right to equality enshrined under Art.14. of the Constitution.
Furthermore, Art. 15(1) of the Constitution also aims to remove any discrimination on the basis of sex. But, in choosing to classify the nature of crime based on the victim’s marital status; The IPC purports stereotypes about females in marriage. It also violates Art. 19(1) (a) and Art.21 as it deprives the married woman, of the right to exercise her reproductive rights freely.
Thus, in the process, stripping her of basic dignity and other protections available to all rape victims. In a pioneering judgement, a bench led by Justice DY Chandrachud in X vs Principal Secretary, Health and Welfare Department, Govt. of NCT of Delhi,. significantly held that “the meaning of rape must be held to include “marital rape” for the purpose of Medical Termination of Pregnancy Act and Rules.”
HALE’S PRINCIPLE: EVOLUTION OF MARITAL RAPE IN THE U.K AND INDIA
The provision finds roots in the “Doctrine of Coverture” whereby, upon marriage, the woman’s rights and obligations were subsumed by those of her husband. Thus, making them one single entity. Sir Matthew Hale, English Jurist, in his “The History of Pleas of the Crown” (1736) opined that
“The husband cannot be guilty of a rape committed by himself upon his lawful wife, for the mutual matrimonial consent and contract which the wife had given herself to the husband, and the consent of which she cannot retract”
The same doctrine was partly responsible for denying equal voting rights to women. However, India progressively introduced a "universal adult franchise". It chose to give equal voting rights to women in 1950, recognising them as separate legal entities.
Also, while decriminalising ‘Adultery’ and ‘Homosexuality’ in Joseph Shine and Navtej Singh Johar cases respectively, Justice D.Y Chandrachud succinctly clarified that “Women have the right to love according to her choice and also an absolute right to reject. Moreover, pre-constitutional laws carry no presumption of constitutionality and must conform to fundamental rights conferred under part III of the Indian Constitution”.
The Navtej Singh Johar v. Union of India judgement is the first instance of extension of constitutional morality to sexual relationships in India. Similarly, by proclaiming “sexuality as an integral part of citizenship” the Joseph Shine judgement safeguards sexual autonomy and also acts as a stepping stone for the criminalisation of marital rape.
In the same judgements, Justice DY Chandrachud also pointed out that "marriage is a constitutional regime founded on the equality between spouses. Each of them is entitled to the same liberty which Part III guarantees".
However, unlike the U.K. where marital rape was criminalised as early as 1991 in (R v.R). Where the House of Lords established marital rape as a criminal offence by abolishing the fictional exception stating that "according to Hale's principle by marriage a woman gives irrevocable consent to sexual intercourse with her husband regardless of any circumstances, her mental health, feelings or opinion. However, in modern times, any person with the sane mind would reject this conception upon its unreasonableness".
Another instance is from Singapore, a former colony, where Exception 2 to Sec. 375 was repealed by the parliament in January 2020.
Nevertheless, India's diverse religions and its myriad marital laws prevent such swift action.
Since India is a multi-religious secular country, any statutory change regarding the institution of marriage would conflict with personal laws. However, the issue of marital rape which exists "de facto” but not “de jure” cannot be left unresolved.
As a progressive developing nation in South-East Asia, India must criminalise Marital Rape at the earliest mainly because: -
Firstly, The existence of Marital Rape in India is in stark contrast with the ethos of Part III of the Indian Constitution. In discriminating against victims of rape based on age and marital status we deny the fundamental right to life, liberty, equality and autonomy to married women. In the split verdict on the abovementioned writ petition, Justice Shakhdher aptly noted that “Marital rape with one stroke deprives nearly one-half of the population of equal protection of the laws.”
Secondly, India is one of the founding members of the Universal Declaration of Human Rights (UDHR) and a signatory to the International Bill of Rights of Women, that is, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly. And in denying protection to all victims of rape irrespective of their age or marital status, India is somewhere lagging to fulfil its international obligations.
Therefore, to recognize the "non-consensual sex in marriage" as "marital rape" and eliminate the possibility of discriminating against a woman's rights based on her marital status,structural changes are essential to bringing Indian marital laws at par with international standards.
India’s stance regarding marital rape becomes even more significant in the backdrop of the disastrous U.S. Supreme Court ruling in overturning Roe v. Wade.
The Indian Supreme Court has asked for the Centre’s reply to the petition and is said to continue the hearings in February 2023.
Irrespective of the final judgement, the case will have huge ripple effects on the rest of the world; including deciding the course of women's rights in the near future.
Faisal C.K, A Greek Comedy And An Indian Tragedy; Marital Rape Exception Under The Indian Law Must Go, LIVELAW (DEC 30, 2022, 19:14) https://www.livelaw.in/columns/lysistrata-marital-rape-exception-section-375-indian-penal-code-211275
Sex and the supreme court, meneka guruswamy and arundhati kadju“ from adultery to sexual autonomy: the constitutional potential of joseph shine" 11- 24 ( 2nd ed. 2021)
Shruti Kakkar, Marital rape: SC to hear pleas on Delhi HC’s split verdict in February 2023, THE NEW INDIAN EXPRESS (Dec.29, 2022, 20:38)https://www.newindianexpress.com/nation/2022/sep/17/marital-rape-sc-to-hear-pleas-on-delhi-hcs-split-verdict- in-february-2023-2499052.html
Planned parenthood of southeastern pa. V. Casey, 505 u.S. 833 (1992)