The marital rape exception in the law must be challenged

“Sexual intercourse by a man with his own adult wife is not rape.” This proposition reflected in Exception 2 to Section 375 of the Indian Penal Code is also referred to as the marital rape exception (MRE) as it removes marital rape from punishable rape law. This was challenged in a petition before the Delhi High Court before a two-judge bench with Justice Rajiv Shakdher and Justice C Hari Shankar.

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Both judges took very different stands — Justice Shakdher holding the to be unconstitutional and Justice Shankar upholding the exception, thus leading to a stalemate, which may be broken by a decision by the Supreme Court on appeal, or a law reform by Parliament. Until then the law may stand.

Both judges felt that the sexual autonomy of women cannot be compromised. Both found the idea of ​​forcing the wife to have sex abhorrent.

However, they differ on whether all non-consensual sex between a man and a woman would be raped. Justice Shakdher felt that one category of offenders would be immune to punishment if they committed an act, which has been clearly defined as rape in the rest of the section. He felt that, therefore, every woman subject to rape should be able to file a criminal case, regardless of the identity of the perpetrator. Justice Shankar, on the other hand, laid this open for debate on the basis that marriage is a unique relationship that may justify differential treatment, carrying it with a “legitimate expectation of sex”. He considered sex between husband and wife as sacred and immune from interference by allegations of rape, especially as denial of sex without reason could amount to cruelty under family law. He felt that it would adversely affect the institution of marriage if the husband were to be considered the wife’s rapist.

Both judges spoke about the difference in treatment between married and unmarried women and whether it would be constitutional. The test for whether there is intelligible differentia with the object sought to be achieved was variously answered with Justice Shakdher holding it to be unreasonable classification which is arbitrary and thus violative of Article 14. Article 14 guarantees equality before the law and equal protection of the law . The Exception takes this away from a large chunk of women.

Justice Shankar, on the other hand, sees a viable intelligible differentia between a married couple and two people who are not married. He reiterates, time and again, that the Exception clearly says that sexual acts between a husband and wife are not raped.

“My body, my right” is an integral part of the right to personal liberty for every woman. Not protecting personal liberty by refusing to punish a serious infringement violates a wife’s rights under Article 21. Right to life, dignity and bodily privacy are also arguments raised by the petitioners.

Preservation of the abuse of marriage has been used in the past to turn a blind eye to the institution of women’s rights in the private sphere. Justice Shakdher was firm that the state does not have an interest in saving a tyrannical marriage. On the other hand, justice Shankar felt that there was an obligation on the judiciary to preserve the marriage and to make all efforts to save the matrimonial bond. Family relations have been put on a pedestal.

In an analogy, Justice Shankar stated that “a father slapping a son is not a criminal offense, whereas a stranger who slaps a child may well be committing a crime.” However, assault and battery have no Exceptions in the Indian Penal Code. Violence against children is a crime regardless of the perpetrator. This is true for women as well. Seen against this, Exception 2 would be an anachronism.

National Family Health Survey (NFHS) data cited in Justice Shakdher’s judgment shows that married women face sexual violence in large numbers. They are 17 times more likely to face sexual violence from their husbands rather than from outsiders. Very few complain. This is true of domestic violence in general. When the problem is so widespread, not addressing this would be a violative omission of constitutional guarantees of equality to women as well as a violation of India’s obligations under The Convention on the Elimination of All forms of Discrimination Against Women (CEDAW).

If marital rape is not considered rape, what remedy would a wife have? Justice Shankar acknowledges that she would have criminal remedies under various provisions including 498A. However, this is not “fair labeling” according to the petitioners. A rape is after all a rape.

Meanwhile, other high courts have also considered this issue. In Gujarat, in the case of Nimeshbhai Bharatbhai Desai (2018) the court held that the MRE did not make the offence rape, but held that a woman could prosecute her husband for unnatural offences (Section 377). In Karnataka, in the case of Hrishikesh Sahoo earlier this year, the court said that the MRE was an unequal provision and that marital status should not be an excuse in cases of sexual assault. It did not interfere with the framing of charges of rape of the wife against the husband.

There is definitely a lot of churn as far as marital rape is concerned. The ideal situation is to have law reforms spearheaded by the legislature. This would address issues that have arisen such as penalties for marital rape. As of now, there is a lower punishment for separated couples and the incongruity of having a higher punishment for married men and a lower one for separated men has been pointed out. However, in the absence of intervention, courts must step in and a decision from the Supreme Court on this important issue is hoped for.

The importance of challenging the MRE cannot be downloaded. Now that an argument to scrap the Exception has been raised, let us hope it is only a matter of time before we can call a spade, a spade and a rapist, a rapist.

(The writer is professor of law, National Law School of India University, Bengaluru)


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