I have often stated that I belong to the era where I believe in the institution of marriage. As a lawyer and a woman who has had a majority of work focused on and around issues regarding marriage and intimacy, I believe I am in a position to evaluate the situation objectively. Marriage, I believe, is the grundnorm of society, the bedrock upon which the fabric of the society is built. It is not to say that it is without its problems, and one such confounding problem is the issue of marital rape.
The issue surrounding marital rape has confounded India for centuries. The concept of immunity from marital rape seemed to have emanated from colonial legacy, right from the times of Chief Justice Mathew Hale in 1736. Chief Justice Hale stated in History Placitorum Coronae (History of the Pleas of the Crown) published posthumously in 1736: “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 hath given herself up to her husband, consent which she cannot retract.”
Recently, the Kerala High Court observed that marital rape is a good ground to claim divorce. A division bench of the Kerala High Court comprising A Muhamed Mustaque and Dr Kauser Edappagath held that husband and wife in a marriage are equal partners and husband cannot claim any superior right over wife either concerning her body or concerning individual status. The court further stated that any intrusion, physically or otherwise, in marital space would constitute cruelty. Nearly just because the law is not recognising marital rape under penal law, that does not mean that the court cannot recognise the same as a form of cruelty to grant a divorce.
There are several theories on why marital rape should or should not be a crime.
The traditional theory that confronts one appears to be that the social construct and the sanctity of the institution of marriage advocates that marriage is a private space, therefore there should not be intervention or criminality built into the construct. The counterview is rather clear that this appears to be the extension or perpetuation of the power dominance theory and ultimately today affirmative action needs to be taken to rectify the historical wrong.
There is no gainsaying in the fact that simply because a practice has been prevalent for a considerable period, the same should be permitted to continue and we continue to perpetuate malpractices even though it is antithetical to all concepts of humanity, human dignity, gender equality and constitutionality. Once we accept this narrative, the rest very quickly falls into place.
Another compelling reason is more practical: It will be almost impossible to either prove or disprove the factum of rape. When we look at crimes behind closed doors, we look for certain clues, for example in cases of rape, medicinal evidence, bodily injuries and whether the accused and the victim were there at the same time. These parameters will not exist in the cases of marital rape. The disadvantage will be on the person, on whom the burden of proof lies. The act of law and practicality is very often a precarious balancing one. On one hand, we have women whose right on their own body and bodily autonomy is absolute, on the other we have the very practical issue of how to prove an attack, in an intimate setting. There is no question that a balance has to be found.
The discrimination between married and unmarried women is fatal to the understanding of gender roles. A woman remains a woman whether married or unmarried and whether married or unmarried she has a right to say no. The argument that there is no violation of married women right under Article 21 of the Constitution since she has other remedies (remedies of lodging a complaint about domestic violence, grievous hurt, or get divorced on the grounds of cruelty) is fallacious and hollow.
The questions that we need to address and the answers that may be self-evident are the following:
1. Is the exception to rape in the form of marital rape inconsistent with Articles 14, 15 and 21 of the Constitution of India?
2. Is the classification between married and unmarried women in the context of rape rational, or is it completely arbitrary therefore cannot withstand constitutional scrutiny?
3. How do we adjudicate the concept of consent — if in the present case there is a lack of consent, would it not fall within the clear domain of rape?
4. Is there any rationale for granting immunity in case of marital rape, when it is a classified crime under Section 375 of IPC?
5. How do we treat the individual autonomy of a woman?
Since 2015, the Delhi High Court has been seized of this issue. However recently the same has gained considerable impetus. This issue can no longer cause any delay. On a broad surface, the National Family Health survey 2005-2006 demonstrated that out of 80,000 women interviewed 93 percent said that they had been sexually abused by their current or former husband. We can’t be putting this issue on the back burner and have a blind eye towards it. Needless to say, India has been rapidly progressing in the dimension of gender equality and gender dignity.
Several anachronistic practices have been either struck down or the law amended ensuring a rightful place for women, most importantly human dignity. We have brought into place several criminal laws, including making cruelty a criminal offence under Section 498A IPC; dowry misappropriation has been deemed to be a criminal offence under Section 406 IPC; Domestic Violence Act has come into place in 2015 addressing the concerns of the women facing cruelty, harassment and various other forms of violence, to ensure their protection. All this has reflected a sea change in the landscape of the age-old concept of privacy in the domain of matrimonial relationships.
Simultaneously the judiciary has been moving forward in protecting the rights of women. In the recent judgement Independent Thought Vs. UOI (2017 (10) SCC 800) by Justice Justice Lokur and Justice Deepak Gupta of the Supreme Court read down the exception in the case of statutory rape and held that the age of consent must be read to 18 and not 15 for the purpose of exception 2 to Section 375. The court observed that the exception was creating an artificial and unnecessary distinction between unmarried and married girls without any rational nexus thereby the court held it arbitrary and discriminatory under Articles 14 and 15 of the Constitution. The court noted that the exception was contradictory to the other scheme developed by the government for the protection of children POCSO, and POCSO being special legislation would prevail.
The judgement paves the way to take a step forward in this direction. Of course, it is never an easy task considering the social construct and the sectional societal opposition. Nobody wants displacement of power; perpetuation of power is always a heady cocktail. If you look around, you will find more than 100 countries have made marital rape an offence including Pakistan. England, from where this colonial legacy emanated, made marital rape an offence back in 1991. The house of lords held common law is capable of evolving with the change in social, economic and cultural developments, since that time the status of women has evolved. The court stated that “Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.”
The government has also taken a progressive approach on this matter. The government in the Delhi High Court stated that this process is going through a consultative process. It now remains for us to see whether the change would come in through a legislative process or the court. Either way, the immunity granted to marital rape cannot withstand the scrutiny of criminal law. Two of the arguments made by the opposition include: One, that the law has the potential of misuse; two, that the court cannot create an offence.
There is not much substance in these arguments.
The law is an instrument to define what is right and to punish what is wrong. It sets the narrative for society.
I might also add that constitutional morality itself which is the very root of the Constitution has started the ethos of Indian society. In the Vishakha case in 1997, the Supreme Court relying on the international convention including UN-CEDAW held that sexual harassment of women at the workplace requires to be addressed and set out detailed guides which ultimately got translated into law in 2013.
It is not the creation of offence but striking down of an exception that is artificially created. Regina’s case paved the way for such an interpretation. The Supreme Court in Independent Thought Vs. UOI (2017 (10) SCC 800) has already answered this argument by stating that by striking down the exception to Section 375 IPC, no offence is being created. The offence already exists in the main part of Section 375 IPC. Cutting down a part of the exception is only bringing the law in consonance with the Constitution.
Historically, women were subjected in law and society as objects or goods. Justification for this treatment was found in these three ideologies.
1.Chattel theory: Wherein a woman was the property of her father until she married to become the property of the husband. Marrying a woman or buying a woman were synonyms.
2.The feudal doctrine of coverture: Wherein a woman had no identity upon marriage. She had no political power or protection under any statutes. The husband had the right to beat his wife or chastise her in the ahem of bringing order within the family.
3. Marital unity theory: The women upon marriage become one with the husband. She had no rights. She could not enter into any contract, sue another, make a will or even have a property.
It has been a tough road for women for the past few decades; we have fought long and hard for our rights not just to be recognised but also to be implemented. Marital rape is a direct attack on a woman’s bodily autonomy, the kind of attack that reduces her being to an object. Men having immunity for marital rape perpetuates that notion, creating a mindset that wives may be treated as a commodity or for their own fancies and nullifies the concept of consent. It is a menace that should be removed not just for the present generation, but as a signal for the future to treat women as equals, whether in a marriage or out of it.
The author is a Senior Supreme Court Advocate and former Additional Solicitor General of India. Views expressed are personal.