It is time to end the debate on marital rape in India

Updated on Aug 27, 2021 06:39 PM IST

The Kerala HC and Chhattisgarh HC judgments, along with the Independent Thought verdict, establish the need for a debate on marital rape because there can’t be an “artificial distinction” between the social predicament of a wife below 18 and above

Representational image. PREMIUM
Representational image.
BySeema Sindhu

A division bench of the Kerala high court (HC) comprising Justice A Muhamed Mustaque and Justice Kauser Edappagath in a case recently held that “a husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.” This new judicial interpretation of cruelty as grounds for divorce is also espoused in section 13(1)(ia) of the Hindu Marriage Act.

In another judgment by the Chhattisgarh HC on August 23, in a criminal revision, the court relied on Exception II of Section 375 of the Indian Penal Code (IPC), stating: “...sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In this case, [the] complainant is legally wedded wife of applicant No. 1, therefore, sexual intercourse or any sexual act with her by the applicant No. 1/husband would not constitute an offence of rape, even if it was by force or against her wish.”

Exception II to Section 375 refers to sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years old, is not rape. This implies that marital sex with a woman who is over the age of 15 is not rape, even if it is without her consent.

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But in October 2017, in Independent Thought v. the Union of India, the Supreme Court (SC) ruled that sex with one’s minor wife, who is below 18 years old, would amount to rape — even with her consent. This effectively means that the law in the country penalises marital rape only where the wife is below 18 years old.

Legally, there’s no anomaly between the two judgments as the Kerala HC judgment adjudicates a civil dispute and the Chhattisgarh HC adjudicates a criminal dispute. Legal principles are different in civil and criminal law. However, the judgments create a legal paradox for the future.

The Kerala HC refers to the “autonomy of wife”, invoking the constitutional right to privacy in the institution of marriage. “Treating wife’s body as something owing to [the] husband and committing [a] sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompass[es] bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy.” The Bench went beyond carving the ratio, writing an extensive obiter dictum in the judgment, which will have a significant impact on matrimonial jurisprudence.

In an epilogue, constituting obiter dicta, it said: “Autonomy is now considered as a part of privacy and ennobled as a fundamental right... In a changed scenario of marriage in the society, shifting from the social philosophy to individual philosophy, we are afraid whether the present divorce law on enumerated grounds would stand to the test of constitutionality.”

The argument is that if individual autonomy in a marital relationship is ennobled as a fundamental right, then marital sex without consent ought to be criminalised. If it is not criminal, then there can’t be individual autonomy in marriage, because individual autonomy and lifetime consent for sex in marriage are mutually exclusive propositions.

Historically and universally, matrimonial jurisprudence has upheld the Anglo tradition that solemnisation of marriage results in giving unconditional and lifetime consent to sexual intercourse by the wife. It is this convention that the Kerala HC has challenged through its judgment.

In the past, the SC has turned down petitions seeking the criminalisation of marital rape on multiple occasions stating that it is not in its jurisdiction and it is for Parliament to take a call. In 2019, the Delhi HC even turned down a petition seeking a declaration of marital rape as a ground of divorce — which the Kerala HC has judicially recognised in its judgment. The Law Commission (172nd Report, 2000) has opposed criminalising marital rape on the ground that it may amount to excessive interference with the marital relationship and refused to amend Section 375 in these terms. The government believes that if marital rape is penalised, the family system will be in tatters.

The Kerala HC and Chhattisgarh HC judgments, along with the Independent Thought verdict, establish the need for a debate on marital rape because there can’t be an “artificial distinction” between the social predicament of a wife below 18 and above. It is unreasonable to say that a wife below 18 years has bodily integrity, but loses it on the attainment of the age of majority. Bodily integrity is inviolable at any age.

The Kerala HC emphatically talks of “individual autonomy” which means consent in the “normal” sex life of a couple is itself a material question. Sexual violence and perversion are wrong, invoking both civil and criminal provisions. Consent in sexual violence and perversion is beyond question, but if consent in the normal sexual life of a couple is under consideration — as is implied by the Kerala HC by using terms such as individual autonomy and right to privacy — then any sexual act in a marriage without consent is criminal. It is for the apex court to clear the air.

Seema Sindhu is a practising lawyer at Supreme Court.

The views expressed are personal

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