Abstract:

As the Indian Judiciary has accentuated the significance of sexual autonomy of a woman in its various rulings, it has lagged in recognising the same in the social setup of matrimony. While there is recognition of the sexual integrity of a sex worker, the Courts are yet to declare the same for a married woman when the perpetrator is her husband. The legislation provides for difference between non consensual sexual intercourse between husband and wife and that with stranger. The rationale behind the same is the preservation of the institution of marriage. The present paper intends to examine the concept of marital rape in light of the latest split verdict of the Hon'ble Delhi High Court.[1]

Marital Rape Exception (MRE) in India:

Section 375 of the Indian Penal Code, 1860 provides for the acts that comprise the rape by a man. It further lays two exceptions to the same, that is, for the medical procedures and decriminalizing marital rape. Exception 2 to section 375 reads as “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This age was increased to 18 years by the Hon'ble Supreme Court in Independent Thought v. Union of India.[2]

The split verdict:

The Delhi High Court delivered a split verdict on 11.05.2022 in hearing a clutch of petitions on the constitutionality of MRE. The provisions under challenge were Exception II of s. 375, s. 376(2)(f), s. 376B of IPC and s, 198B of CrPC. Justice C. Hari Shankar has upheld the validity of the said provisions, whereas Justice Rajiv Shakdher has declared the same to be unconstitutional

Justice Rajiv Shakdher’s opinion:

Justice Rajiv Shakdher has opined that the impugned provisions are violative of Articles 14, 15, 19(1)(a), and 21 of the Indian Constitution. MRE creates an unreasonable, discriminatory and arbitrary classification. The immunity from prosecution based on the relationship between the parties is unjust and manifestly arbitrary. MRE also deprives almost one-half of the population of the equal protection of laws. The law empowers even a sex worker to say 'no' but not to a married woman. The right of conjugal cohabitation doesn't give the right to the husband to have unfettered authority to have sexual intercourse even without the consent of the wife. The sexual autonomy of the wife cannot be disregarded under the garb of conjugal rights of the husband. A 9-judge Bench of the Supreme Court in the unanimous decision of Justice K. S. Puttaswamy (Retd) v Union of India[3] discussed at length individual autonomy and privacy as intrinsic to freedom and liberty. As regards the question of saving the institution of marriage, The Hon'ble judge opined that it can be saved only by fundamental principles of "mutuality, partnership, agency and the ability to respect each other's yearnings for physical and mental autonomy” and not by granting immunity to offences. It was further held that the excuse of invasion in private space was just to keep the law at bay even when the heinous crimes are committed in the so called-private space. The problem of collecting evidence is not something different to that of other offences. It is for the investigative agencies to perform their duties effectively. A recent report by National Family Health Survey (NHFS-4) disclosed disturbing incidents of spousal sexual violence and that 99% of the cases of sexual assault go unreported in India. 

 As regards the issue of creating a new offence, the Hon'ble Judge stated held that there is no creation of a new offence as the same is already existent. Declaring MRE unconstitutional would only extend the offence of rape to offending husbands as there is no perceivable rationale for the exemption. The ingredients of the offence continue to be the same, there is only filling of gaps, reading down an unconstitutional provision, and doing the same is the discharge of the Constitutional function of the Court. Furthermore, the fundamental premise on which the penal laws are made is punishing the act/omission of the perpetrator irrespective of who he is or how he is associated with the victim. MRE violates article 21 as non-consensual intercourse adversely affects the woman physically, psychologically and emotionally. The offence of rape is against the dignity, bodily integrity, autonomy and agency of a woman. It deserves societal disapprobation. Modern-day marriages of equals and one gender cannot be discriminated against to the whims and fancies of the other. MRE is violative of Art. 15 as the environment of the safety of a woman is completely eroded. The impugned provisions also violate Article 19(1)(a) as it disregards the freedom of the wife to assert her right to sexual agency and autonomy. Hence, the impugned provisions are struck down.

Justice C. Hari Shankar’s opinion:

  Justice C. Hari Shankar opined that there is an intelligible differentia between sexual acts within the confines of marriage and that with strangers. This differential doesn't stand diluted merely because it is non-consensual. "If the wife refuses and the husband, nonetheless, has sex with her, howseover one may disapprove, it can't be equated with the act of ravishing by a stranger." There is a qualitative difference between sexual relations in a marriage and, vis-a-vis sexual relations between strangers, and where the legislature in its wisdom has decided to treat the both distinctively, it cannot be said to be violative of Article 14. The Hon'ble Judge further held that it is a legitimate expectation of sexual access in a marital relationship. Sexual intercourse between husband and wife is sacred and the law cannot interfere in the sacred sphere of the relationship. The possibility of declaring the husband a rapist is antithetical to the very institution of marriage. The protection of marital institutions is in public and social interest and is inconceivable to maintain that such an object is illegal. The Hon'ble Judge discussed the legitimacy of the child born out of the non-consensual intercourse between the husband and the wife. The child, otherwise, born to a lawfully wedded couple, out of a legitimate relationship, would be called a child of a rapist just because the wife was unwilling of having sexual intercourse at the time of conception. The declaring of MRE as unconstitutional would amount to creating a new offence which is proscribed in law. However, the impugned exception does not condone the very act of husband; it just disregards calling the act as 'rape' and the husband’rapist’. There are other remedies available to the wife in both civil and criminal law such as section 304B, 306, 377 and 498A of the IPC and Section 3 of Dowry Prohibition Act, 1861 and even seeking divorce on the ground of cruelty. The Hon’ble Judge further held that there is no fundamental right inherent in the wife to get the husband convicted of rape in articles 19 and 21 of The Indian Constitution. Hence, the challenge to the Constitutional validity of Exception 2 to section 375 cannot sustain.

Other Countries on Marital Rape:

MRE in IPC draws its significance from UK laws. However, the same was removed by R v. R in 1991. The countries that were amongst the first to criminalise marital rape/to remove the exception are Poland (in 1932) and the Soviet Union (1922). According to a report by Amnesty International 77 out of 185 countries have criminalised marital rape.

Conclusion:

The object of section 375 is to protect women against sexual offences and not to protect the matrimonial bond. The issue needs to be addressed in light of individual autonomy, dignity and agency of the woman. Both the Judges concurred in the decision of granting the certificate to appeal to the Supreme Court as it involves the matter of the substantial question of law, thus, it is for the Supreme Court to settle the issue.

YASHIKA ANEJA

Campus Law Centre, University of Delhi