An unprecedented reformist judgement delivered recently by a single-judge bench of the Karnataka high court (HC) effaces the idea of husbands as rulers of their wife’s bodies, souls and minds. The ruling declares acts of sexual assault by a husband amenable to charges of rape under the Indian Penal Code (IPC), thereby revoking the legitimacy of marital rape.
Sexual violence within marriage hits at the core of debates over equality and consent as well as individual and bodily autonomy. The term ‘rape’ in quotidian parlance is sexual penetration without consent or against someone’s will. However, a regressive exception 2 to Section 375 of the IPC exempts marital rape.
This exception stems from myriad biases ingrained in a male-dominated society that result in male prerogatives. The wife’s lack of consent has been held as irrelevant to sexual intercourse within legal wedlock. By entering into the marital union, she was presumed to have consented to all forms of sexual contact with her partner in perpetuity, with no legal protection for her right to refuse.
Women are conferred a separate identity and equal rights by India’s Constitution: the grundnorm. Yet, a significant question lingers behind the legally institutionalized veil of marriage and social licence for exertions of male supremacy: Whether the statutory exception empowers men to violate the fundamental rights of their spouses?
Marriage is no licence to rape: The Karnataka HC in March 2022 dismissed the petition of a husband who sought the dropping of rape charges levelled against him by his wife. The bench concurred with the trial court in taking cognizance of the case under Section 376 of IPC. The bench said that the marital rape exception carved out in the IPC can’t be absolute in nature so as to license crimes.
“Man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the court rightly asserted. Just by virtue of being the husband, a rapist ought not to escape punishment. We should note the report of the Justice J.S. Verma Committee constituted pursuant to the Nirbhaya rape case in 2012. It observed that the relationship between accused and complainant is not a relevant factor in determining consent to sexual activity.
The court explicated the contradiction between Section 375’s exception 2 and Article 14 of the Constitution. The exception crumbles when assessed by the doctrine of reasonable classification under Article 14. It unfairly differentiates between two classes of men on the basis of their marital status, a differentiation that does not bear any rational nexus to the objectives and purposes of the law. The exemption fails to protect women from offences against them.
Marriage is a union of equals and no statutory exemption can encroach upon the rights conferred by Articles 14, 15, 19 and 21 of the Constitution. Women are as entitled as men to freedom, equality, dignity, reproductive choices, bodily autonomy and privacy. Marriage as a social construct, however, places women as subservient to men in that union. It is clear that the exemption cannot be presumed to be constitutionally valid. Landmark rulings on decriminalization of homosexuality and adultery have established that pre-constitutional era laws framed by foreign legislative action cannot be considered constitutional. Plus, India is one of the signatories to the United Nations Declaration on Elimination of Violence against Women, which considers marital rape an offence.
According to the National Family Health Survey for 2015-16, an average Indian woman is 17 times more likely to have suffered sexual assault from her own husband than from anybody else. It also suggests that 99% of all sexual violence occurs within marriage.
The fact that marital rape remains an exception is disturbing and the Karnataka HC’s judgement underscores the urgency of recognizing such sexual assault. It is pertinent that a division bench of the Kerala HC upheld marital rape as a valid ground for divorce in 2021. Justice Madan Lokur too, in Independent Thought vs. Union of India, had struck down a part of the exception, although this judgment was confined to minor wives. Courts had been reluctant to strike down the exception, perhaps in anticipation that it might be construed as an act of judicial overreach. They conveniently failed to exercise their powers of judicial review under Article 13. As for the legislature, it seems to fear that recognizing marital rape as an offence might displease orthodox voters.
However, even doing away with the marital rape exclusion is not sufficient to end crimes against women in their own homes. It is highly unlikely in the present social setup that women will bring abusive spouses to book as it would mean breaking their marital ties. Poor, ignorant and vulnerable women find it difficult to exit abusive marriages and do not wish to wash dirty linen in public.
It is reasonable to conclude that the removal of the marital rape exception from the IPC, or recognition of marital rape as a crime without sensitivity, is only a half-hearted attempt. However, recognizing marital rape as an offence or at the least striking down the exemption would be a good start to changing the attitudes of society and authorities.
As a woman, one prays and pleads that the plight of half the country’s population is taken into account and redressed.
Trisha Shreyashi is a lawyer and columnist.