Explained: The debate over marital rape

What is the case about?

A two-judge Bench of Justices Rajiv Shakder and C Hari Shankar is hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375 of the Indian Penal Code that deals with rape. Apart from the petitioners, who include the All India Democratic Women’s Association, the court will also be hearing amicus curiae Raajshekhar Rao and Rebecca John, senior advocates.

IPC Section 375 defines rape and lists seven notions of consent that, if vitiated, would constitute the offence of rape by a man. The crucial exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

This exemption essentially allows a marital right to a “husband”, who can with legal sanction exercise his right to consensual or non-consensual sex with his “wife”. This exemption is being challenged as unconstitutional as it undermines consent of a woman based on her marital status.

Why is this provision in place?

Marital rape immunity is known to several post-colonial common law countries. It is premised on broadly two assumptions:

CONSENT IN PERPETUITY: This is the assumption that on marriage a woman gives consent held by her husband in perpetuity which she cannot retract. This concept in the colonial-era law has roots in the antiquated idea that a woman is the property of her man.

EXPECTATION OF SEX: This is the assumption that a woman is duty-bound or is obligated to fulfil sexual responsibilities in a marriage since the aim of marriage is procreation. Since the husband has a reasonable expectation of sex in a marriage, the provision implies that a woman cannot deny it.

The reasons for not outlawing the provision so far, too, are crucial. In a 2010 paper (‘Rape Within Marriage in India: Revisited’), Prof (Dr) K I Vibhute observed that the “preservation of the institution of the family” is what mainly allows the provision to gain legitimacy. “… the preservation of the family institution by ruling out the possibility of false, fabricated and motivated complaints of ‘rape’ by ‘wife’ against her ‘husband’ and the pragmatic procedural difficulties that might arise in such a legal proceeding”.

Does the law exist in the UK?

The marital rape exception was overturned by the House of Lords in 1991. Canada (1983), South Africa (1993), Australia (1981 onwards) enacted laws that criminalise marital rape.

What are the arguments before the court?

The challenge to marital rape has been possible because of a slew of Supreme Court rulings — the 2017 Aadhaar ruling that cemented the right to privacy; the 2017 ruling that struck down the practice of instant triple talaq as unconstitutional and held that laws cannot be “manifestly arbitrary”; the 2018 ruling that held IPC Section 377 unconstitutional to the extent that it criminalised homosexuality; the 2018 decision decriminalising adultery; and the 2018 Sabarimala temple entry verdict that religious or social practices that are gender-discriminatory are unconstitutional.

Marital rape immunity stands against the light of the right to equality, the right to life with dignity, personhood, sexual, and personal autonomy — all fundamental rights protected under Articles 14, 19 and 21 of the Constitution respectively. The question before the court is, in fact, to what end or reason the law can validate the encroachment of these rights.

The petitioners have also argued that it creates an unreasonable classification between married and unmarried women and, by corollary, takes away the right of a married woman to give consent to a sexual activity.

The petitioners have argued that since courts have recognised that consent can be withdrawn even during/in-between a sexual act, the assumption of “consent in perpetuity” cannot be legally valid. On the “reasonable expectation of sex” reasoning, the petitioners have argued that even though there is a reasonable expectation of sex from a sex worker or other domestic relationships as well, consent is not irrevocable.

The judges sought to distinguish between sex in a marriage and sex with a sex worker. This distinction is based on the idea that marriage must lead to procreation. This again prompts the question as to whether the law can de-legitimise sexual consent of women in favour of procreation while also recognising an exception — the right to abortion.

Another crucial aspect for the court to consider will be whether the protection of marriage and family can be a compelling or even legitimate interest for the state to the extent that it can make laws that violate fundamental rights. Courts apply a balancing test on violation of fundamental rights when the state has a legitimate or compelling interest on the issue: for example, national security, public health and order.

What is the government’s stand?

In an affidavit, the Centre defended marital rape immunity. The government’s arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage. However, Solicitor General Tushar Mehta also told the court that wider deliberations are required on the issue. He brought to the court’s notice a 2019 committee set up by the Ministry of Home Affairs to review criminal laws in the country.

The Delhi government too has defended the law on the ground that married women who might be subjected to rape by their husbands have other legal recourses such as filing for divorce or a case of domestic violence. The government has also said that since the law on restitution of conjugal rights, a provision in the Hindu Marriage Act that allows a court to compel a spouse to cohabit with the husband, is valid, so is the exception to marital rape, by extension. However, restitution of conjugal rights is a provision in personal laws and not in penal laws and even that provision is currently under challenge before the Supreme Court.

In the past, as in the cases challenging homosexuality under Section 377, governments have preferred continuity and showed reluctance in doing away with such provisions.

In 2013, the J S Verma Committee, set up to look into criminal law reforms following the brutal gangrape and murder of a 23-year-old paramedic in Delhi in 2012, had recommended removing the marital rape exception. Although it implemented several key progressive recommendations by the committee, the Congress-led government did not change the law on marital rape. Recently, Congress leader Rahul Gandhi tweeted in favour of striking down marital rape immunity.

The petitioners have argued that since the provision was inserted before the Constitution came into force, the provision cannot be presumed to be constitutional.

What about apprehensions on ‘fake cases’ against men?

While it is crucial to ensure that any law is not misused, the court will have to look into whether the only way to prevent misuse is by giving a blanket legal immunity for married men against marital rape.

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Legal experts also cite the “false acquittal” phenomenon — where a person accused of rape might be acquitted by courts for lack of evidence — to counter the narrative of “false convictions” cited as misuse of the law.

Experts have routinely flagged massive underreporting of sexual crimes in India, suggesting that the misuse argument might be exaggerated. A 2010 South African case suggested that even though 18.8% of women were raped by their partners on one or more occasions, rates of reporting and conviction remain low and that judges regarded it as a “less serious” form of rape. South Africa, in fact, passed a special legislation in 2007 that clarified the relationship between the accused and the complainant.

The J S Verma committee had quoted the response of Prof Sandra Fredman of the University of Oxford to the committee, that it would take “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.