Marital rape: The ape 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 considfundamental right.”
If individual autonomy in a marital r tionship is a fundamental right, then ma sex without consent ought to be crimi ised. If it is not criminal, then there can individual autonomy in marriage, bec individual autonomy and lifetime con for sex in marriage are mutually exclu propositions.
Historically, matrimonial jurisprud has upheld the tradition that solemnisa of marriage results in giving unconditi and lifetime consent to sexual intercours the wife. It is this convention the Kerala HC has challen through its judgment.
In the past, the SC has tur down petitions seeking the cr nalisation of marital rape, sta that it is not in its jurisdiction a is for Parliament to take a cal 2019, the Delhi HC even tur down a petition seeking a decl tion of marital rape as a groun divorce — which the Kerala HC has judic recognised in its judgment. The Law C mission has opposed criminalising ma rape on the ground that it may amou excessive interference in the marital r tionship. The government believes th marital rape is penalised, the family sys will be in tatters.
But the Kerala HC judgment, along Chhattisgarh HC judgment, in view of Independent Thought verdict, puts up a for a debate on marital rape. It is unreas ble to say that a wife below 18 years has ily integrity, but loses it on the attainme the age of majority. Bodily integrity is in lable at any age.
The Kerala HC emphatically talks of “i vidual autonomy”, which means conse the “normal” sex life of a couple is its material question. If this is the case implied by the use of terms such as ind ual autonomy and the right to privacy, t any sexual act in a marriage without con is criminal. The apex court must not pu the issue anymore.