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The arguments made against making marital rape a criminal offence are not valid

In striking down the marital rape exception, the court will not be creating a new crime, or trespassing into the domain of Parliament. It will be holding that an artificial immunity from criminal law, created by an 1860 law, can no longer survive constitutional scrutiny. And more importantly, it will be realising the promise of the privacy judgment – a further step towards individual dignity and autonomy.

analysis Updated: Apr 02, 2018 12:18 IST
Marital rape: Image for representation only(iStock))

Section 375 of the Indian Penal Code defines the crime of rape in six different ways. In some detail, it sets out the different situations in which consent is non-existent, or is vitiated. At the end of the provision comes an exception. It states, simply enough: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

Late last year, the Delhi High Court began hearing a constitutional challenge to the marital rape exception. It was argued that the exception’s distinction between married and unmarried women was arbitrary and artificial, and violated Article 14 of the Constitution, which guarantees the equal protection of laws. It was also argued that in specifically disadvantaging married women (by denying them the protection of Section 375), the marital rape exception violated their right to autonomy and privacy under Article 21, and their right to non-discrimination under Article 15(1). Arguments are expected to finish soon, and a judgment is expected in the foreseeable future.

Four arguments are normally raised in support of the marital rape exception. First, that allowing wives to complain about rape will destroy the family; second, that by definition, sex within marriage can never amount to rape; third, that the criminalisation of marital rape would violate the privacy of marriage by (to put it euphemistically) “allowing the State into the bedroom”; and last, that it would become a weapon of abuse in the hands of unscrupulous wives.

Each of these arguments is a non-starter. The belief that the institution of marriage would wither away if marital rape were made criminal appears to rest upon the bizarre assumption that coerced sex is essential to marriage. If that assumption is false, then nothing more needs be said. If it is true, then we must ask whether an institution that depends on coercion for its very existence is worth saving in the first place.

The second and third arguments were good when the IPC was framed in 1860. They rest upon two assumptions: first, that marriage amounts to a one-time, lifetime consent to sexual intercourse; and second, that the institution of marriage must be placed beyond the realm of constitutional scrutiny. Both these assumptions, however, are entirely incompatible with a constitutional democracy founded upon ideas of freedom and autonomy. Indeed, the Supreme Court’s famous right to privacy judgment clarified these issues beyond dispute.

The court held that privacy began with the human body, and that at the heart of the right to privacy was the idea of decisional autonomy – that is the right of each individual to decide how, and to what end, her body would be used. Just as individuals cannot sell themselves into slavery, nor can they be deemed to have waived their right to decisional autonomy upon marriage. More crucially, however, the right to privacy judgment clarified that privacy was a right possessed by individuals.

Older formulations of privacy, expressed through phrases such as a man’s home is his castle or the State cannot enter the bedroom, located privacy in spaces (such as the home), or relationships (such as marriage). They were, therefore, impervious to force, coercion, and unequal power relationships within those spaces or institutions. For this reason, in his plurality judgment, Justice DY Chandrachud explicitly acknowledged the “feminist critique of privacy”, and wrote that any contemporary formulation of privacy must emancipate individuals rather than subordinating them within the home, the marriage, family, or society. Criminalising marital rape, therefore, is not about the State invading the bedroom, but about ensuring that the principles of consent, dignity, and autonomy, apply as much within the bedroom as outside.

The last argument clinches it. It is a statistically proven fact that an overwhelming percentage of sexual assaults are committed not by strangers, but by persons familiar to the survivor – and especially by spouses and partners. It is in the very nature of such cases that witnesses are difficult to come by, evidence is scant, and it is often one person’s word against another. The answer lies in strengthening evidentiary procedures, and not in unconstitutionally immunising one form of intimate relationship – the marriage – from the operation of normal rape laws.

In striking down the marital rape exception, the court will not be creating a new crime, or trespassing into the domain of Parliament. It will be holding that an artificial immunity from criminal law, created by an 1860 law, can no longer survive constitutional scrutiny. And more important, it will be realising the promise of the privacy judgment – a further step towards individual dignity and autonomy.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal

(Disclaimer: The author is one of the lawyers involved in the constitutional challenge to the marital rape exception, before the high court)

First Published: Apr 02, 2018 12:18 IST