Authored By: Sidra Ali
Shri Ram College of Law
INTRODUCTION:
The issue of making marital rape a criminal offense is one of the most discussed topics in India right now. In Indian Criminal Law, rape is considered a very serious crime. Under the Indian Penal Code, 1860, Section 375 and the Bharatiya Nyaya Sanhita, 2023, section 63, rape is defined as an act that violates a person’s bodily integrity and sexual autonomy. However, exception 2 of Section 63 (Bharatiya Nyaya Sanhita) excludes the sexual intercourse between a husband and his wife from the definition of rape, provided the wife is not under the age of eighteen years[2]. This exception is based on the idea of implied marital consent.
The exception raises an important and fundamental question for us. Does marriage takes away a woman’s right to control her own body? Does this exclusion try to make inequality within marriage seem normal?
The Constitution of India guarantees every citizen the Right to Equality (Article 14), the Right to Non- Dscrimination (Article 15), and Right to Dignity (Article 21).
However this exception appears to go against these constitutional principles and basic moral values.
In this article, the author examines the historical background of marital rape, the weaknesses of current legal framework, important court rulings related to this issue, and the social and legal consequences.
The Author also argues that exception 2 reflects outdated patriarchal beliefs that men should have more power and rights. These beliefs are unfair and conflict with modern laws that promote equal treatment for everyone.
HISTORICAL BACKGROUND
The origin of marital rape can be traced back to old English law. The 17 th century, English jurist Sir Matthew Hale wrote in “Historia Placitorum Coronae” that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife has given up herself in this kind unto her husband, which she cannot retract”[3]. According to Hale, it was not possible to charge a husband for raping his own wife.
This view was rooted in the doctrine of “coverture”, under which a married woman has no individual legal identity instead, her identity is merged under that of her husband. It shows how a woman’s right to individuality has always been suppressed by society.
The s 375 of Indian penal code had codified an exception, excluding marital rape from the definition of rape[4]. However, the law considered a wife under fifteen years of age as vulnerable to forced sexual activity. The same exception is now included in Exception 2 of s 63 of the Bharatiya Nyaya Sanhita, 2023 but the age limit has been raised to eighteen years. Despite significant reforms in laws related to sexual offences, the marital rape exemption remained unchanged.
This continued existence of this exception shows that society still often views marriage not as a relationship of equality, but as something that gives one person a sense of permanence and control over the other.
This idea does not align with modern constitutional values and human morality.
These values are based on equality and mutual respect rather than on any form of dominance.
ARTICLE 14: RIGHT TO EQUALITY AND ARBITRARY CLASSIFICATION
Article 14 of the constitution of India guarantees the right to equality. It states that all people are equal before the law and are entitled to equal protection of the law, However, the exception for marital rape appears to contradict this principle. The contradiction arise when a women outside of marriage is protected from rape, but a married woman is not given similar protection against her husband.
Under article 14, a reasonable classification can be made if it has a rational connection to a good objective.
The purpose of laws against rape is to criminalize the sexual acts done without the consent of the victim and to prosecute those who commit such acts.
Critics argue that marriage does not justify the removal of consent. The exception assumes that a wife automatically gives consent to sexual acts.
In joseph shine v union of India,[5], the supreme court of India struck down the offence of adultery under s497 of the IPC.
The Supreme Court held that the law treated woman as property. It was held that that the law was unconstitutional, arbitrary, gender discriminatory and violates Article 14, 15 and 21 of the constitution. The law was also seen as inherently patriarchal, treating women as the property of their husbands.
The logic used in Joseph Shine weakens the idea behind marital rape, as it also treats wives as unequal and subordinate to their husbands.
Furthermore, in Navtej Singh Johar v Union of India,[6] the Supreme Court of India held that the morality of the constitution must take precedence over the morality of society.
Now the question arises if equality and morality are protected outside marriage than why not in within marriage?
Such denial of equality and autonomy within marriage seems constitutionally arbitrary.
ARTICLE 21: RIGHT TO DIGNITY, PRIVACY AND BODILY INTEGRITY
Article 21 gives every person the right to life and personal liberty.
This article also protects a person’s dignity and provides them with personal freedom. Article 21 is a broad article, as it also includes several other fundamental rights.
In Maneka Gandhi v Union of India,[7] the Supreme Court expanded the scope of Article 21.
It allowed courts to protect the fundamental rights from government interference, even if no specific procedure was broken. Later, in Justice KS Puttaswamy v Union of India,[8] the court recognized Right to Privacy as an essential part to dignity and autonomy.
In, Suchita Srivastava v Chandigarh Administration,[9] the Supreme Court held that reproductive autonomy is part of personal liberty.
In Independent Thought v Union of India,[10] the Supreme Court ruled that sexual intercourse with a wife who is a minor, that is below age of eighteen years will be considered rape, even if she is above fifteen years of age. The court upheld the bodily integrity and sexual autonomy of a minor girl. It was also declared that the institution of marriage does not eliminate the criminality of sex without consent for minor girls.
It is to be noted here that the above case did not abolish the marital rape exception for women above eighteen years of age. This retention of exception 2 thus appears incompatible with Article 21 guarantee of dignity and bodily integrity.
JUDICIAL ENGAGEMENT: THE DELHI HIGH COURT SPLIT
In RIT Foundation v Union of India,[11] the constitutional validity of marital rape exception was challenged. The Delhi High court delivered a split verdict in 2022.
Justice Rajiv Shakdher struck down the exception, held that the exception violates constitutional right to equality given in article 14 and right to dignity protected under article 21. He held that exception 2 denies married women equal protection and autonomy. While Justice C Hari Shankar upheld it. He argued that removing exception constitutes judicial legislation and that the exception preserves the institution of marriage. He also raised concerns regarding misuse.
The split verdict reflected judicial ambivalence. The case highlighted a divide in judiciary regarding the bodily autonomy of married women .The case is presently pending before Supreme Court.
SOCIO- LEGAL IMPACT: MARRIAGE, CONSENT AND PATRIARCHY
In India marriage has always been considered as Hierarchal institution. Female modesty before marriage is socially valorised, while marriage itself is often seen as legitimising permanent sexual access.
Now this framing allows person to assume consent from recurring choice into a presumed marital duty of wife. Exception 2 risks that the wife’s autonomy is sub- ordinate to conjugal expectations of husband.
Feminists criticises such frameworks saying such laws manifests structural patriarchy. Catharine Mackinnon argues that “sexual violence must be understood within power hierarchies rather than isolated acts[12]. The laws like marital rape exception shows how law can institutionalize inequality by shielding violence occurring within marital relationship.
COMPARATIVE LEGAL STUDIES
Comparative constitutionalism shows that the exemption of marital rape is not something that must always exist or is essential to marriage.
In many parts of the world, the idea of marital rape has been acknowledged for a long time.
Marital rape is considered a crime in about150 countries. For example, courts in Canada and South Africa have rejected the idea that marital rape is exempt from criminal punishment, and they have said that marriage does not mean that consent is nor necessary. In countries like United Kingdom and the United States, marital rape is treated the same as non- marital rape.
In the case of R v R,[13] the House of Lords in England ended the legal protection that allowed marital rape to be exempt from prosecution. They said that the idea that married people automatically consent to sexual activity is outdated and does not match the modern understanding of marriage.
India is a signatory to Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
It is an international agreement that serves as a full set of rights for women. It requires countries to end discrimination against women in all areas, including within marriage.[14] However, keeping the exemption for marital rape seems to go against these commitments and is not consistent with them.
ARGUMENTS AGAINST CRIMINALISATION
Some people who oppose making marital rape a criminal offense say it might cause problems for marriage as n institution, make it harder to prove in court, and could be used unfairly in family disputes.
The Supreme Court has repeatedly said that the risk of misuse cannot be used as reason to deny someone their constitutional rights.[15]
Another argument is that marriage should not be protected at the expense of a person’s dignity.
The issue of proving evidence in marital rape cases is not unique;it exists in all rape cases.
Transformative Constitutionalism require to not accept institutions as they are. Keep questioning them so that they promote fairness and autonomy.
WAY FORWARD
Constitution of India manifests social transformation. In Navtej Singh Johar the court emphasize that constitutional morality must guide legal interpretation. If we apply this principle, marital rape exception appears traditional or out- dated.
It is require to criminalise the marital rape and along with it some reforms should also be done.
Some of the suggestions for reforms are as follows
- Public awareness to remove the social stigma.
- Support service for survivors.
- Gender sensitive policing
- Evidentiary safeguards.
CONCLUSION
In Indian society consent in marriage is presumed as irrevocable which is incompatible with contemporary constitutional morality. If the protection against sexual violence is given on the basis of marital status, it creates discrimination that undermines the Article 14,15 and 21.
Judicial precedents affirms dignity, autonomy, and substantive equality. Comparative legal studies shows that criminalising marital rape strengthens the institution of marriage rather than weakening it. It aligns the institution of marriage with principles of equality.
India is a constitutional democracy that commits itself to justice, so here marriage cannot function as a shield for coercion. It is high time to harmonize the criminal law with constitutional morality by recognising consent as not permanent and automatic.
Reference(S):
[1] Fifth Year Student, BA LLB, Shri Ram College of Law, Muzaffarnagar
[2] Bharatiya Nyaya Sanhita 2023, s 63 Exception 2
[3] Sir Matthew Hale, Historia Placitorum Coronae (n 1) 629
[4] Indian Penal Code 1860, s 375, Exception 2
[5] Joseph Shine v Union of India (2019) 3 SCC 39
[6] Navtej Singh Johar v Union of India (2018) 10 SCC 1
[7] Maneka Gandhi v Union of India (1978) 1 SCC 248
[8] Justice KS Puttaswamy v Union of India (2017) 10 SCC 1
[9] Suchita Srivastava v Chandigarh Administration (2009) 9 SCC 1
[10] Independent Thought v Union of India (2017) 10 SCC 800
[11] RIT Foundation v Union of India 2022 SCC OnLine Del 1404
[12] Catherine A MacKinnon, Toward a Feminist Theory of the State ( Harvard University Press 1989 )
[13] R v R ( 1992) 1 AC 599 (HL)
[14] Convention on Elimination of All Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981)
[15] See e.g. State of Rajasthan v Balchand (1977) 4 SCC 308
