Why the marital rape exception rule must go
My body my rules” is a colloquial way of saying that a woman’s right to her bodily integrity is inextricably connected to her right to life. Yet, women across the world have historically, and even today, struggled to assert agency over their own bodies. In a week where the world is still reeling from the possibility of the United States (US) Supreme Court overturning legal protection for abortion afforded under Roe v Wade, the Delhi high court (HC) delivered a split verdict on the marital rape exception.
The marital rape exception is language in the Indian Penal Code (IPC) that essentially states that a man cannot rape his wife as long as she is over 18 years old. While nonconsensual intercourse of any kind amounts to rape, non-consensual intercourse with one’s wife is exempted from being an offence. Notably, there are hundreds of other offences prescribed under the IPC; however, rape is the only one that receives this special status vis-a-vis a spouse.
A man can be prosecuted by his spouse for any other offence, but not rape. If we were to look at rape as the act of violence that it is, it begs the question, why would it be afforded treatment different from other attacks to bodily integrity, like grievous hurt? It is yet to be tested whether non-consensual sex between a husband and wife could be prosecuted under the lesser offence of grievous hurt, as there is no special exception created for that offence.
The marital rape exception was challenged as being unconstitutional in a case before the Delhi HC. On Wednesday, a division bench delivered a split verdict. The result is that the exception stays on the statute books for the time being, and the matter will now likely be considered by the Supreme Court. The judgment by the presiding judge, justice Rajiv Shakdher, holds the marital rape exception to be unconstitutional.
In tracing the genesis of the exception, he cites the original formulation of Sir Mathew Hale (a former Chief Justice of the King’s
Court), in 1736, which reads, “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract wife hath given up herself in this kind unto her husband, which he cannot retract.”
He starts his judgment with a reference as to whether we should “exorcise Hale’s Ghost”. In his conclusion, indeed he does. Taking note of the concerns of misuse and also different sentencing norms, which require legislative attention, he holds, “…a married woman’s right to bring the offending husband to justice needs to be recognised. This door needs to be unlocked; the rest can follow”. Interestingly, it is widely reported that the same Sir Mathew was quoted extensively by Justice Samuel Alito of the US Supreme Court in the leaked draft proposing to overturn Roe v Wade.
Justice C Hari Shankar, in the other judgement, emphatically holds that: “As things stand today, an act of non-consensual sex, by a husband with his wife is not rape.” He notes that the offence of rape does not exist if the man and woman are married, and striking down the marital rape exception would amount to the creation of a new offence. He also expresses concern that the provisions for aggravated offences would also then apply, given the relationship of husband and wife.
Admittedly, issues such as marital rape traverse tricky ground. There is room for misuse. There are valid concerns that our current provisions and minimum sentence prescriptions do not contain the ecosystem to support the prosecution of cases of marital rape. But we are not inventing this wheel.
Much of the world has already recognised the fact that, in reality, a man can rape his wife, having already rid themselves of spousal rape exceptions several decades ago. Much of the change took place through judgments by courts that prompted legislation. The concerns on safeguards expressed by those supporting the exception in India have been dealt with in other countries. For instance, some states in the US have stricter timelines for registering complaints for the offence of marital rape, others include the use of force or threat of force as a necessary ingredient, if the spouse is a perpetrator.
The right to exercise agency over your own body is paramount for all human beings. The right is well recognised in law, whether it be to consent to medical treatment, vaccine mandates, or even the right to travel freely. To explicitly hold that nonconsensual sex in a marriage does not constitute the offence of rape, and to allow such an exception to remain on the statute books, essentially tears away a woman’s right to agency over her body, within her own home. Women go to extraordinary lengths to keep themselves safe outside the home. To live a life of similar vulnerability even in the confines of one’s own bedroom, cannot possibly be considered realisation of the right to life under our Constitution.
Shyel Trehan is a graduate of National Law School of India University, Bangalore and Columbia Law School. She is a counsel practising in Delhi high court and the Supreme Court The views expressed are personal