- INTRODUCTION: THE GHOST OF SIR MATTHEW HALE
Marital rape that is non-consensual sexual intercourse or other forms of sexual violence committed by one spouse towards the other is a severe infringement of bodily autonomy and personal dignity. Historically, the immunity offered to husbands has its origins in the common law of England in the seventeenth century especially the doctrine propounded by Sir Matthew Hale who held that a husband could not face charges of raping his legal wife since a marriage would constitute an irreparable consent. This doctrine was enshrined in the doctrine of coverture by which the legal personality of a woman, when she married, fused with that of her husband. Although this archaic construct has been broken by constitutional democracies all over the world, it still persists in India with the criminal law still having its remnants that serve to legitimize sexual violence in marriage.
- THE EXISTING STATUTORY FRAMEWORK: IPC AND BHARATIYA NYAYA SANHITA
Rape in India is a crime that is regulated under Section 375 of the Indian Penal Code, 1860, and is a criminal act involving acts of non-consensual sexual intercourse. Exception 2 to Section 375 however expressly leaves out the sexual acts of a husband with his wife except that she is not under eighteen years of age. This exemption has been preserved in the Bharatiya Nyaya Sanhita, 2023, in particular, in Section 63 with Section 85, which comprises a continuity of lawmaking and not reform. Although the Protection of Women against Domestic Violence Act of 2005 acknowledges the existence of sexual abuse in marriage, it offers civil solutions. Lack of criminal penalties strengthens the fact of invisibility of married women who are victims of sexual violence before the law.
- CONSTITUTIONAL INCOMPATIBILITY OF THE MARITAL RAPE EXCEPTION
- Violation of Article 14: Equality Before Law
Art. 14 of the Constitution may require equality before the law and it forbids arbitrary classification. The Supreme Court has repeatedly believed that a valid classification should pass the twin prongs of intelligible differentia and rational nexus, which were established in the case of Budhan Choudhary v. State of Bihar and State of West Bengal v. Anwar Ali Sarkar.
Marital rape exception means that a distinction has been made between married and unmarried women, and this distinction is founded only on the basis of marital status. This distinction does not rationally nexus on the object of rape laws to punish non-consensual sexual intercourse. The fact that it does not cover married women with its protection makes the classification visibly arbitrary and it breaches Article 14.
In E.P. Royappa v. State of Tamil Nadu, the Supreme Court ruled that arbitrariness is the opposite of equality. This constitutional principle is squarely violated by the marital rape exception which immunizes a group of criminals without reasoning.
- Violation of Article 15: Prohibition of Sex-Based Discrimination
Article 15 outlaws any form of discrimination based on sex. The marital rape exception affects women in a disproportionate number and promotes the gender stereotypes based on the patriarchal notions of marital rights.
In Navtej Singh Johar v. Union of India, the Supreme Court refused to use social morality and historical prejudice on the basis and asserted constitutional morality. On the same note, in National Legal Services Authority v. Union of India, highlighted substantive equality and opposed categorisations based on stereotypes.
The marital rape exception is based on a pre-modern concept of the subsumption of consent of the wife in marriage suggesting that the consent of a wife is always permanently subsumed in marriage and this is not compatible with Article 15.
- Violation of Article 21: Dignity, Privacy and Bodily Autonomy
Article 21 of the right to life includes the elements of dignity, bodily integrity, and decisional autonomy. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court declared the privacy as an inherent element of individual freedom.
This principle was reaffirmed in Justice K.S. Puttaswamy v. Union of India, wherein the Court believed that privacy safeguards independence of intimate choices, such as sexual relations. Further, in Suchita Srivastava v. Chandigarh Administration, where a right of a woman to refuse sexual activity was recognised as an essential element of personal freedom. Forcible sexual intercourse in marriage thus is a direct violation of Article 21.
- JUDICIAL ENGAGEMENT WITH MARITAL RAPE: AN INCOMPLETE EVOLUTION
The judicial rhetoric in India portrays an increasing appreciation of consent in marriage though it is not completely criminalised.
In Independent Thought v. Union of India, the Supreme Court interpreted the marital rape exception by excising it to the extent that it was applicable to minor wives and said that the institution of marriage does not eradicate the need to consent. The ruling recognized that sexual autonomy does not disappear even after marriage.
Additionally, in State of Punjab v. Gurmit Singh, the Court defined rape as a crime that violates the dignity of a person is not only degrading to the victim, while State of Haryana v. Janak Singh focused on the psychological effects of sexual violence in the long term. These observations make the further immunity to marital rape more and more inconsistent with criminal jurisdiction.
- COMPARATIVE JURISPRUDENCE AND INTERNATIONAL HUMAN RIGHTS STANDARDS
Comparative study of the laws addressing marital rape in different jurisdictions indicates that the world has decidedly changed in terms of not permitting spousal immunity as a concept but acceptance of consent as an inseparable component of all sexual relationships. The idea that marriage gives an indissoluble licence to sexual access has always been tried and dismissed by the common law jurisdictions and the international human rights organisations.
- United Kingdom: Abolition of the Common Law Fiction
A historic move was taken in the United Kingdom in R v to step out of the centuries-old common law. The House of Lords, in R, ended in no doubt that the marital rape exemption was abolished. The Court believed that the principle of irrevocable consent insofar as it was discussed by Sir Matthew Hale could no longer be in line with the contemporary interpretation of marriage, equality, and the autonomy of an individual. The ruling acknowledged that marriage is a union of equals and that, the consent had to be present during the sexual act. The House of Lords undermined the legal fiction that had characterised bodily autonomy of a woman in the subordination to the marital relationship by stating that a husband could be found guilty of raping his wife. This case has ever since become a precedent of common law jurisdiction across the globe.
- United States: State-Led Criminalisation and Judicial Intervention
Marital rape immunity was eroded in the United States, in a slow, state-by-state process that was mediated by feminist legal activism and constitutional litigation.
In 1975, South Dakota was the first state to repeal the marital rape exemption, and it started a larger legislative movement. This was a significant judicial development in People v. In a case where the New York Court of Appeals in Liberta (1984) stated that the spousal immunity was unconstitutional and that marriage could not be used as the reason to offer unequal treatment to women in the criminal law.
By 1993, criminalisation of marital rape had been enforced in some form in all fifty states of the U.S. There are however still differences, with some jurisdictions still making a distinction between spousal and non-spousal rape to sentence or provide evidence in a court of law. Irrespective of these contradictions, the major principle, marriage does not imply exclusion of the necessity of consent, has been strongly reinforced.
- Canada and Nepal: Legislative Recognition of Sexual Autonomy
In 1983, Canada took up a legislative approach based on rights and amended its Criminal Code with Sections 271 to 273 that redefined sexual assault in a holistic and removed marriage as a defence. The reforms focused on the consent as the main constituent of sexual offences regardless of the relationship between the parties.
Likewise, by its Criminal Code Act, 2017, Nepal also criminalised marital rape, as it is a grave offence against bodily integrity and personal dignity. The reforms in Nepal are even more important considering that its socio-cultural similarities to India are strongly marked, which could prove that legal reform is not culturally foreign and not socially disruptive.
- International Human Rights Framework
International human rights instruments also support the international rejection of marital rape immunity. The Declaration on the Elimination of Violence Against Women (1993) expressly determines marital rape to be a type of gender-based violence and urges the states to exercise due diligence to stop it as well as penalize it.
General Recommendation No. 19 and 35 provide that State parties must criminalise spousal sexual violence and provide effective legal redress. Such recommendations explain that gender-based violence is discrimination in the international law.
Moreover, the appeal to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights helps to emphasize the postulate that the cultural tradition, religious value, or marital status cannot be used to justify the abuse of bodily integrity and personal security.
- Comparative Stagnation: The Indian Context
Unlike these international trends, India still has the Exception 2 to Section 375 of the IPC that has been further reproduced in Section 63 of the Bharatiya Nyaya Sanhita in Independent Thought v. Union of India (2017) Unlike these international trends, India still has the Exception 2 to Section 375 of the IPC that has been further reproduced in Section 63 of the Bharatiya Nyaya Sanhita.
According to the sources of literature, it is reported that India is currently one of the few countries that have not yet completely criminalised marital rape, which is estimated to be less than forty. This inaction of the law renders India into conflict with its constitutional obligations of equality, dignity and personal liberty and the direction of reform in other democratic societies.
- SOCIAL AND PSYCHOLOGICAL IMPACT OF LEGAL SILENCE
Most of the marital rape has undergone gross underreporting because of stigma, financial dependency, and absence of social ostracisation. Survivors often develop a severe psychological trauma with a post-traumatic stress disorder, depression, and anxiety, and physical symptoms such as unwanted pregnancy and sexually transmitted diseases. The criminal recognition denial in the law adds to the survivor trauma as it legalises the abuse in the marital home.
- ARGUMENTS AGAINST CRIMINALISATION: A CRITICAL APPRAISAL
The most common reasons used to oppose reform are based on the issue of destabilisation of marriage, law misuse and difficulty of evidence. Nevertheless, marriage conservation should not warrant annihilation of personal dignity. Threats of misuse are inherent to any criminal law and can be solved by procedural precautions. The problems of evidence are not specific to marital rape, nor are they the reason to grant a blanket immunity.
- THE WAY FORWARD: REFORM IMPERATIVES
Accessible reform with reference to marital rape should be multi-layered instead of being symbolic. First, it is essential to repeal the Exception 2 to Section 375 of Indian Penal Code and its preservation in Section 63 of Bharatiya Nyaya Sanhita to make sure that marriage is no longer being used as a cover to sexually assault women and that married women can enjoy the same protection under the criminal law. This repeal should be followed by a statutory acknowledgement of affirmative and revocable consent making it clear that consent should be given freely, informed and able to be revoked at any point regardless of the marital status. Meanwhile, legal protections and procedural and evidentiary guarantees would be needed in the legal system in order to balance victimization protection with the philosophies of due process, which include proper standards of investigation and protection against frivolous or malicious prosecution. It is also important that the law enforcement authorities and the court should be sensitised and trained to be more specific to break the traditional patriarchal mindsets that view marriage as an area of male sexual privilege. Lastly, there must be sustained public educational campaigns to address the stigma in the society, emphasize positive marital relationship, and reform the concept of consent as an ongoing and reciprocal one to ensure that law change is accompanied by more social change.
- CONCLUSION
The still extended immunity surrounding marital rape indicates the inertia of legislation to be based on colonial patriarchy. According to constitutional values which are the conscience of the Constitution and cannot be selectively followed and applied like in Minerva Mills Ltd. v. Union of India.
Marriage should not work as a cover over sexual violence. Until the Indian law acknowledges the fact that the consent is inevitable regardless of the marital status, the constitutional commitments to dignity, equality and liberty are not fulfilled.
THIS ARTICLE IS WRITTEN BY ADARSHA PURSUING BBA LLB FROM KARNAVATI UNIVERSITY
References:
Sir Matthew Hale, Historia Placitorum Coronæ 629 (1736).
Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373, 1376–78 (2000).
Indian Penal Code, 1860, § 375.
Indian Penal Code, 1860, § 375, Exception 2.
Bharatiya Nyaya Sanhita, 2023, § 63 read with § 85.
Protection of Women from Domestic Violence Act, 2005, § 3(a).
Constitution of India, art. 14.
Budhan Choudhary v. State of Bihar, AIR 1955 SC 191.
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
Constitution of India, art. 15
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
ndependent Thought v. Union of India, (2017) 10 SCC 800.
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
State of Haryana v. Janak Singh, (2013) 14 SCC 342.
R v. R, [1991] 4 All ER 481 (HL).
People v. Liberta, 64 N.Y.2d 152 (1984).
R v. Ewanchuk, [1999] 1 SCR 330.
Criminal Code, RSC 1985, c C-46, §§ 271–273 (Canada).
Criminal Code Act, 2017 (Nepal), § 219.
United Nations Declaration on the Elimination of Violence Against Women, G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (1993).
CEDAW Committee, General Recommendation No. 19, UN Doc. A/47/38 (1992) and CEDAW Committee, General Recommendation No. 35, UN Doc. CEDAW/C/GC/35 (2017).
Universal Declaration of Human Rights, G.A. Res. 217A (III), arts. 1, 3, 5 (1948).
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
Law Commission of India, 172nd Report on Review of Rape Laws (2000)
Justice J.S. Verma Committee, Report on Amendments to Criminal Law (2013)
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.