[This is a post by Panya Mathur, Contributing Member]
[Editorial Note: Constitutional Renaissance Blog would like to thank Ms Bansari Kamdar for having an insightful discussion on ‘Marital Rape Laws’ in India. Reach out to Ms Kamdar here.]
In India, there exists a complex conundrum in relation to the vast number of issues surrounding the criminalisation of marital rape. There has been a great measure of sanctity involved with marriage. Marriage is seen as a sacrament, a union of two souls, who will remain in complete exclusivity to one another for all purposes in their lifetime. This can be proved by the existence of personal laws in the country. For instance, the institution of marriage in the Hindu community occupies a prime role in the social construct of a Hindu. The concept of consent in the sexual relationship in a marriage is dicey and difficult to navigate. A marriage rests on the concepts of a moral cement that produces ‘two-in-one-ship’.
The exception to Section 375 of the Indian Penal Code, 1860 (for brevity IPC) states as follows:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
And the Section 376B of the Indian Penal Code reads as follows:
“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”
The notion of the Marital Rape exception can be traced as far back as 1736 when Sir Matthew Hales declared 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 hath given up herself in this kind unto her husband, which cannot retract.’
The horrors of Harvender Kaur
In the case of Harvender Kaur v. Harmender Singh Choudhary, the Court did not hesitate to opine that “the introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop and that neither Article 21 nor Article 14 had any place in the privacy of the home. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond”. In the case of Smt. Saroja Rani vs. Sudarshan Kumar Chadha, the bench judge explicitly agrees to the judgement given in the Harvinder Kaur Case, hoisting the requirement of the existence of a private sphere wherein the law does not seek a stance, in order to preserve the moral fabric and sanctity of the society.
However, what has been conveniently ignored by the Hon’ble Court is that in both conditions of rape and marital rape the primary definition of rape remains a constant that is sexual penetration or intercourse wherein there exists a lack of consent. Therefore, to prove that the crime of rape has occurred, it is essential to prove the absence of unequivocal consent. Moreover, the burden to prove this absence of consent usually rests on the victim; however, in certain cases such as that in the case of minors, it is presumed that consent does not exist due to the presumption created in law that such minors are incapable of providing consent to any sexual acts. Similarly, in the case where the victim and perpetrator are in a marital relationship, there is a presumption of consent on the part of the wife even when such equivocal consent required by Section 375 is not present. The same can be proved by the mere existence of the exception to Section 375 of I P C. Moreover, the State has selectively penetrated into this marital sphere by enacting legislation that deals with the violence of women in matrimonial homes. PWDVA, 2005 and Section 498A of the IPC provides a remedy for women who are victims of forms of abuse in the marital sphere. Hence, to empower women and protect them from violence in a domestic relationship, the State should rightfully criminalize marital rape break down the public/private dichotomy. The Supreme Court in the case of Independent Thought v. Union of India, partly struck down a part of the exception clause in section 375 citing it to be in violation of the Protection of Children from Sexual Offences Act, 2012 and in violation of a child’s fundamental rights. The court notes that marriage cannot be the sole reason for any reasonable differentiation for girls between the ages of 15-18 years. In doing so the court explicitly made note of the fact that marriage cannot be reasonable classification. Even though the court keenly observed that the judgment did not speak of adult marital rape it is important to note that the court held a woman’s right cannot be subservient to her personal rights simply on basis of marriage.
In the case of State of Tamil Nadu vs. K. Shyam Sundar, the Court has held that whenever there is express arbitrariness that exists in law or State action, irrespective of whether it was legislative or not, Article 14 immediately springs into action, and the said action is struck down. Moreover, the term ‘arbitrary’ means an act that has been done in a manner that is unreasonable, and has been done at pleasure and has been done in a capricious manner without any determining principle, not founded on the nature of things, is non-rational and does not have a standard functioning principle. In order to find out that an act is arbitrary, there must be proof of ‘substantive unreasonableness’ and in the said circumstance, the test of reasonable differentia has not been complied with, because the purpose of criminal laws prohibiting rape or indeed any kind of physical violence or unwanted touching is to maintain a person’s bodily integrity.
However, it must be noted that there are numerous other legislations that protect the rights of married women which have been provided by the Legislature. One cannot look at the exception to rape in isolation, and state that the rights of married women have been deprived. The overall position is that the husband can still be liable for domestic violence or cruelty under the IPC and other specific legislation. Spousal rape should be viewed as an abuse of the marriage relationship, with some protection being deemed necessary for the abused spouse. The State provides protection for the same under the Protection of Women from Domestic Violence Act, 2005 as well as the Section 498A of Indian Penal Code. Moreover, the marital sphere does not rest on the pillars of contracts sealed with permanent terms and conditions that must be maintained to continue the relationship. Neither does the concept of marriage exist on the tenets of Constitutional Law to enforce inalienable rights into a relationship of such sanctity. Thus, it can be concluded that there exists a lack of protection that exists when it comes to the rights of married women in the country. And this lacunae in the law should either be resolved by removing the exception 2 of Section 375 of the Indian Penal Code, that excludes married women from the purview of its protection, or by extending the purview of Section 498A and other such laws.