Why Marital Rape Qualifies as Rape

In the second week of May, the Delhi High Court passed a split verdict on the issue of whether the marital rape exception engrafted in Section 375 of the Indian Penal Code (IPC) was constitutional or not. Exception 2 to Section 375 reads as follows, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”

Justice Rajiv Shakdher struck down the marital rape exception (MRE) as being violative of Articles 14, 15(1), 19(1)(a) and 21 of the Constitution, while Justice Hari Shanker held that the MRE was constitutionally valid. Given the split decision and the importance of the issue, the judges unanimously granted a certificate of leave to appeal to the Supreme Court. Appeals have already begun to be filed by the parties before the apex court. It is expected that instead of the matter being referred to a three-judge bench in the Delhi High Court, it will be decided straightaway in the Supreme Court. Till then, however, the MRE will continue on the statute books in India.

The split verdict reveals two completely different worldviews held by the two judges. As Justice Shakdher notes, the colonial history of MRE discloses that it is “steeped in patriarchy and misogyny”, and has contributed to the diminishing of freedoms won by human beings. His judgment centres the autonomy, dignity and privacy of a woman, with the institution of marriage receding in the background. Thus, he observes that marital rape “needs to be called out as rape” as a way for society to express its “disapproval” concerning the husband’s conduct.

For Justice Shankar, the MRE does not violate the equality guarantee under Article 14 of the Constitution since there was an “intelligible differentia” between rape committed by a husband within a marriage, and rape committed—whether by an intimate partner or a stranger—outside marriage. Justice Shankar’s opinion differs starkly from Justice Shakdher in the importance it gives to the institution of marriage and the “legitimate expectation” of sex in a marriage and the fact that sex between a husband and wife is “sacred”. This is despite his recognition that there may be marriages between unequals, marriages may be good or bad, or happy and sad.

In all this, the State—whether the Centre or the Delhi government— notably did not take any stand on the issue, whether in support of or against the MRE. The Centre only sought time for further consultation given the importance of the issue.

WHY THE EXCEPTION

The history of MRE can be traced back to the doctrine expounded by the 17th century judge, Sir Mathew Hale, who published a treatise in 1736, titled ‘History of the Pleas of the Crown’. He argued for an MRE, since, once a woman consented to marry, “the wife hath given up herself in this kind unto her husband, which she cannot retract”. Additionally, he also viewed women as secondary citizens who must be criminally punished for abortion and he sentenced two widows to death during a witchcraft trial for “bewitching” their neighbours. In fact, in the recently leaked draft opinion of the US Supreme Court in Thomas Dobbs vs. Jackson Women’s Health Organisation, Justice Samuel Alito relied on Sir Hale to overturn the decades-old abortion rights jurisprudence established by Roe vs. Wade.

Given the misogynistic and patriarchal origins of the MRE, it is perhaps no surprise that in most countries, whether in the UK, US, Canada, South Africa, Israel or Russia, marital rape is treated as rape or sexual assault and is criminally punished. Only around 32 countries in the world—among them, Bangladesh, China, Haiti, Laos, Mali, Myanmar, Nigeria, Senegal, Afghanistan, Tajikistan, Lebanon, Malaysia, Singapore, Egypt, Libya, Oman, Yemen and Kuwait—continue to

Only around 32 countries in the world continue to decriminalise marital rape. It is unfortunate that India has still not been able to move out of this dubious list

decriminalise marital rape. It is unfortunate that India has not able to move out of this list of countries.

WHY ARGUMENTS FOR MRE DO NOT HOLD

There are a few arguments put forward by supporters of the MRE that need to be dispelled immediately. First, that by striking down Exception 2 to Section 375 of the IPC, the court is usurping the role of the legislature and making a law. Such an argument is predicated on a misunderstanding of the role of the court and the power of judicial review. The striking down of an existing exemption in the law is not the same as a court proactively legislating an offence into existence. Exception 2 to Section 375 of the IPC is present on the statute book and hence it is well within the court’s remit to examine the constitutionality of the provision.

Second, that the criminalisation of marital rape will result in severe misuse. It is a settled position in Indian law that mere apprehension of misuse cannot be a ground to strike down a law or render it unconstitutional (Budhan Choudhry vs. State of Bihar, 1955). Arguments of misuse were also made when Parliament introduced the domestic violence legislation in 2005 or when it criminalised the commission of cruelty against women. Concerns of misuse need to be addressed by improving existing laws, procedural due process, and curbing unrestrained (mis)use of police powers—as is needed to curb the misuse of, say, sedition or anti-terror laws. However, the answer does not lie in removing the protection otherwise afforded to women or preventing the state from intervening in a marital home, especially given the genderunequal nature of society.

Third, that the MRE is integral to maintaining the sanctity of marriage—that introducing the possibility of the husband being regarded as the wife’s rapist is “completely antithetical to the very institution of marriage” (per Justice Shankar). At the end of the day, we must question whether we want to protect such a version of marriage that cements the inequality between a husband and wife, ignores consent and autonomy, and treats women as chattel. That is at least not the kind of world I want my daughter to grow up in. ■

At the end of the day, we must question whether we want to protect such a version of marriage that cements the inequality between a husband and wife, or ignores consent