Marital rape: The apex court must not put off the issue anymore
Adivision bench of the Kerala High Court (HC) recently held that “a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty”.
In another recent judgment by the Chhattisgarh HC, the court relied on Exception II of Section 375 of the Indian Penal Code (IPC), stating: “...sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In this case, [the] complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No.1/husband would not constitute an offence of rape, even if it was by force or against her wish.”
Exception II to the Section 375 refers to sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years, as not rape. It implies that sex with a wife who is over the age of 15 is not rape, even if it is without her consent. But in October 2017, in Independent Thought v the Union of India, the Supreme Court (SC) ruled that sex with one’s minor wife, who is below 18 years of age, would amount to rape — despite her consent. This effectively means that the law in the country penalises marital rape only where the wife is below 18 years old.
Legally, the Kerala HC judgment dealt with a civil dispute and the Chhattisgarh HC with a criminal dispute. However, the judgments create a legal paradox for the future.
The Kerala HC refers to the “autonomy of wife”, invoking the constitutional right to privacy in the institution of marriage. “Treating wife’s body as something owing to [the] husband and committing [a] sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompass[es] bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.” The Bench also wrote an extensive obiter dictum in the judgment, which will have a significant impact on matrimonial jurisprudence. It said: “Autonomy is now considered as a part of privacy and ennobled as a fundamental right.”
If individual autonomy in a marital relationship is a fundamental right, then marital sex without consent ought to be criminalised. If it is not criminal, then there can’t be
individual autonomy in marriage, because individual autonomy and lifetime consent for sex in marriage are mutually exclusive propositions.
Historically, matrimonial jurisprudence has upheld the tradition that solemnisation of marriage results in giving unconditional and lifetime consent to sexual intercourse by the wife. It is this convention that the Kerala HC has challenged through its judgment.
In the past, the SC has turned down petitions seeking the criminalisation of marital rape, stating that it is not in its jurisdiction and it is for Parliament to take a call. In 2019, the Delhi HC even turned down a petition seeking a declaration of marital rape as a ground of divorce — which the Kerala HC has judicially recognised in its judgment. The Law Commission has opposed criminalising marital rape on the ground that it may amount to excessive interference in the marital relationship. The government believes that if marital rape is penalised, the family system will be in tatters.
But the Kerala HC judgment, along with Chhattisgarh HC judgment, in view of the Independent Thought verdict, puts up a case for a debate on marital rape. It is unreasonable to say that a wife below 18 years has bodily integrity, but loses it on the attainment of the age of majority. Bodily integrity is inviolable at any age.
The Kerala HC emphatically talks of “individual autonomy”, which means consent in the “normal” sex life of a couple is itself a material question. If this is the case, as implied by the use of terms such as individual autonomy and the right to privacy, then any sexual act in a marriage without consent is criminal. The apex court must not put off the issue anymore.