A bold, rights-based stand on marital rape

On March 23, the Karnataka high court (HC) passed a transformative verdict that situates the Constitution’s promise of equality above the regressive, common law doctrine of “coverture”, under which a woman loses her legal personality after marriage. In Hrishikesh Sahoo vs State of Karnataka (2022) — a first judgment of its kind — not only did the court deny the husband protection from being prosecuted for the offence of rape under the Indian Penal Code (IPC), but it also, in doing so, unequivocally denounced the three oft-cited myths about marital rape.

First, the HC rejected the myth of an irrevocable implied consent to sexual intercourse by the wife in a marriage. The idea of an irrevocable implied consent has its origins in the

17th century statement made by Matthew Hale, former chief justice of the King’s Bench, in England. He said: “A husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife has given up herself in this kind to her husband, which she cannot retract.” While Britain, through a judicial order, did away with the marital rape exception in 1991, Hale’s proposition continues to haunt India in exception 2 to Section 375 of the IPC. As per the exception, sexual intercourse by a man with his wife (above 15 years) does not amount to rape and is not punishable under Section 376 of the IPC. Although the exception stipulates 15 as the age of consent, the Supreme Court in Independent Thought vs Union of India (2017) held this to mean 18 years. In Hrishikesh Sahoo, the HC refused to be bound by the exception and concluded that a “brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.”

Second, the exception has been historically justified on marital privacy, i.e., whatever happens between spouses does not merit interference from the State. But the State must so intervene if and when the marriage involves nonconsensual, criminal acts — sexual or otherwise. As rightly observed by the HC, the institution of marriage does not confer a “special male privilege” upon the husband to force himself on his wife.

As an extension of the marital privacy myth, it is often argued, albeit incorrectly, that to allow the wife to bring rape charges against the husband would mean that the State is facilitating or endorsing marital discord and disharmony. This argument overlooks that little is left to reconcile in a marriage where forceful sexual intercourse and violence have become the norm. Besides, the Protection of Women from Domestic Violence Act, 2005, makes sexual abuse a form of domestic violence, enabling a wife to approach a court for a protection order.

Lastly, the HC rejected the myth of credibility and proof requirements, which wrongly demand the preservation of the marital rape exception. It is argued that the exception works to prevent a vindictive woman from bringing false rape charges against her husband. The argument is misplaced. Several offences exist in the IPC that are difficult to prove or defend. Any penal provision is neither free from abuse, nor can it guarantee a full conviction rate. The purpose of a penal statute is to act as deterrence.

In the past, Indian courts have displayed problematic attitudes in their credibility assessment in rape cases. In some cases, the courts put rape survivors in the dock and subjected them to the humiliating ordeal of callous court trials. It is, therefore, heartening to see Hrishikesh Sahoo setting the record straight.

Unfortunately, Parliament has allowed the marital rape exception to stay in the statute book for over 70 years since adopting the constitutional guarantee to equality in 1949.

The 2012 Delhi gang rape and murder triggered a wave of protests across the country and resulted in key reforms in the anti-rape law, but fell short of the abolition of the marital rape exception. Today, the prevailing dispensation is looking to bring about key reforms to Indian criminal law but discussions on marital rape exception are off the table.

The Karnataka HC must, therefore, be congratulated for taking a bold, rights-based stand on the issue, instead of deferring to Parliament’s wisdom. Moreover, by denouncing these myths, the court has reminded Parliament of the vital difference between the Victorian-era of law-making and positive judicial constitutional law-making.