Topic: Marital Rape as a ground for divorce
The term ‘Rape’ is defined under s.375 of Indian Penal Code which is well
expounded & do elucidate basic difference as in ‘assent’ to ‘consent’ which is
further iterated under the circumstances being enlisted in section 375 i.e.,
First. – Against her will
Secondly. – Without her consent
But with Exception 2 lays down a vague meaning & noxious impact as it
augments the scope of ‘marital rape’ as it says ‘Sexual intercourse or sexual acts
by a man with his own wife not being under fifteen years of age, is not rape.’
This exception fails to expound a deliberated distinction between ‘assent’ &
‘consent’ as a marital obligation which results in severe transgressions of article
14 & 21.
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 have given up
herself in this kind unto her husband which she cannot retract.1
In other words, by consenting to marriage, a wife had given her body to her
husband and also gave irrevocable consent to sexual intercourse with her
husband. The first edition of John Frederick Archbold's Pleading and Evidence
in Criminal Cases in 1822 reiterated the position that: "A husband also cannot be
guilty of a rape upon his wife".
With this cryptic pronouncement, the seventeenth century jurist, Matthew Hale,
laid the foundation for the common law marital rape exemption.
The marital rape exemption gives legal immunity to a man who forcibly sexually
assaults his wife, an act which would be rape if committed against a woman not
his wife.2
The marital rape exemption not only robs a married woman of the right to control
her body vis-a-vis her husband but also disregards the serious harm suffered by
the victim of rapes and denies a married woman the right, which a single woman
has, to legal recourse against her attacker.
1
M. HALE, PLEAS OF THE CROWN 629 (1847).
2 Notwithstanding the presence of the other elements of rape-sexual penetration, lack of
consent, and force-the husband cannot be prosecuted for rape. See generally 3 WHARTON'S
CRIMINAL LAW §§ 283-290 at 1-43 (14th ed. C. Torcia 1978)
The history of rape and marriage laws provides some insight into the genesis of
the marital rape exemption. The matrix of much of the legal and social system in
medieval England was the law of private property. The protection of property
interests influenced both rape and marriage laws. History also reveals an intrinsic
connection between the acts of rape and marriage. The marital rape exemption
can be linked to the interplay of these forces, which made a woman the property
of her husband.3
The mutual right to sexual intercourse continues throughout the entire period of
marital life. But it has to be exercised reasonably.4
A spouse is not bound to submit to the ‘inordinate, perverted or otherwise
unreasonable demands of the other.5
Archaic society of patriarchy have conferred the domination to husband in the
English common law that marriage conferred on husband is a privilege of
intercourse with wife wherein consent being not a backstop in any circumstance.
Since, the rule was that by marriage she had consented to give him that privilege.
From this flowed the general rule that the husband could not be guilty as principle
in the offence of raping his wife as the spousal or marital exemption principle
implies that by their mutual matrimonial consent and contract the wife had given
up her herself unto her husband, which she cannot retract. The marital exemption
is thus based on implied consent.
The legal status (of marriage) alluded to the idea that marital relations are a
private matter and should be dealt with at home. It is under this legal phenomenon
of old-fashioned common and civil law dictate that cultural and social norms
viewed it fit to seal the fate of women, in that, once married, women were offered
very little protection, legal or otherwise from their sexually abusive husbands.
Cultural double standards that promote promiscuity among men but denounce
infidelity among women also promote violence against women. These double
standards are particularly strong among married couples as payment of bride-
wealth is regarded as justification for male control and violence.
3
In an opinion repudiating the rationales and policies in favour of the marital rape exemption,
one court noted that: "A close examination of the historical origins of this principle reveal that
it is rooted in the ancient concepts of a wife as a chattel and the inviolability of the husband's
supreme role in a marriage relationship." State v. Smith, 148 N.J. Super. 219, 229, 372 A.2d
386, 391 (1977).
4
Jyotish v. Meera, AIR 1970 Cal 266; Srikant v. Anuradha, AIR 1980 Kant 8; persistent refusal
to have marital intercourse amounts to cruelty.
5
Foster v. Foster, (1921) P 438; Sidhava Saiah v. Laxmane, AIR 1958 Mys 115.
The law of rape in marriage was reconsidered by the South African courts in
1992-1993 initially with some vicissitudes. Until then, it was held that a husband
was legally entitled to rape his wife. Learned judge Heath said that, “The fiction
of consent and even irrevocable consent by a wife to intercourse with her husband
has no foundation in law and offends against the boni mores of any civilised
society. The absence of consent to sexual intercourse cannot and should not be
ignored. The husband and wife have in modern society become equal partners
with full dominion over their own bodies. To withhold consent to sexual
intercourse, unilaterally may be contrary to marital obligation…[But] the marital
obligation does not, however, entitles the husband to take the law into his own
hands by having intercourse with his wife against her will.”6
In 1889 Justice Field brought the deficiency in the legal system to light and stated
that he believed there were times when a married woman could refuse intercourse
and the husband be held liable for rape. In R v Clarke7. The wife obtained a
judicial separation order stating she was no longer bound to live with her husband.
Two weeks after the order was issued the wife was allegedly raped by her
husband. Justice Bryne whilst recognising that a man cannot rape his wife held
that when the wife had been given a separation order the consent to intercourse
was effectively revoked. Before the appeal was heard in R v R8. The Law
Commission completed a paper on marital rape and made the following
observations. A husband lost his immunity where an order of the court has been
made which provides that a wife should no longer be bound to cohabit with her
husband9 where there has been a decree of judicial separation or a decree nisi of
divorce10 or where a court has issued an injunction restraining the husband from
molesting the wife or the husband has given an undertaking to the court that he
will not molest her11
In at least four recorded cases, a husband had successfully relied on the exemption
in England and Wales to avoid a conviction for rape: R v Miller12; R v
Kowalski13; R v Sharples14 and R v J15. In Miller, Kowalski and R v J, the
husbands were instead convicted of assault or indecent assault, with the courts
6
S v Ncanywa (1993) 212 B
7
[1949] 2 All E.R. 448
8
[1991] 4 All ER 481
9
R. v. Clarke [1949] 33 Criminal Appeal Reports 216
10
R. v. O’Brien [1974] 3 All England Law Reports 663
11
R. v. Steele [1976] 65 Criminal Appeal Reports 22
12
[1954] 2 QB 282; [1954] 2 WLR 138; [1954] 2 All ER 529
13
[1987] 86 Cr App R 339
14
[1990] Crim LR 198
15
[1991] 1 All ER 759
finding that the marital defence only applied to the crime of rape and not to other
sexual acts under the purview of unnatural sex.
In R. v. R,16
R claimed that it was not legally possible for a husband to rape his wife, as the
wife had given irrevocable consent to sexual intercourse with her husband
through the contract of marriage, which she could not subsequently withdraw.
Both the Court of Appeal and subsequently the House of Lords upheld the rape
conviction, declaring that a marital rape exemption did not exist in English law.
In R v Clarke17 , a husband was found guilty of raping his estranged wife, as it
was held that a court order for non-cohabitation had revoked the consent. A
similar result was reached in R v O’Brien18 , after the grant of a decree nisi for
divorce. In R v Steele19 , The husband was convicted after had given an
undertaking to the court not to molest his wife; and in R v Roberts20, a formal
separation agreement was in place. R v S held that the granting of a family
protection order was sufficient to negate any implied consent.
An example of a jurisdiction where marital rape is a distinct criminal offense
is Bhutan where 'Marital rape' is defined by Article 199 which reads: "A
defendant shall be guilty of marital rape, if the defendant engages in sexual
intercourse with one's own spouse without consent or against the will of the other
spouse" & an example of country where the rape law explicitly
criminalizes marital rape is Namibia - The Combating of Rape Act (No. 8 of
2000) states that: "No marriage or other relationship shall constitute a defence to
a charge of rape under this Act".
16
[1991] UKHL 12
17
[1949] 2 All ER 448; 33 Cr App R 216
18
[1974] 3 All ER 663
19
[1976] 65 Cr App R 22
20
[1986] Crim LR 188
Marital Rape: Criminalization in India
The Supreme Court of India and various High Courts are currently flooded with
writ petitions challenging the constitutionality of this exception, and in a recent
landmark judgment, the Supreme Court criminalized unwilling sexual contact
with a wife between fifteen and eighteen years of age. This judgment has in turn
led to an increase in other writs challenging the constitutionality of Exception 2
as a whole. In light of ongoing litigation, this Article critically analyses the
constitutionality of Exception 2.
Violation of Article 14 of Indian constitution
Article 14 of the Indian Constitution ensures that “[t]he State shall not deny to
any person equality before the law or the equal protection of the laws within the
territory of India. “Although the Constitution guarantees equality to all, Indian
criminal law discriminates against female victims who have been raped by their
own husbands.
At the time the IPC was drafted in the 1860s, a married woman was not
considered an independent legal entity. Rather, she was considered to be the
chattel of her husband21.As a result, she did not possess many of the rights now
guaranteed to her as an independent legal entity, including the right to file a
complaint against another under her own identity. Exception 2, which essentially
exempts actions perpetrated by husbands against their wives from being
considered acts of “rape,” is largely influenced by and derived from this already
existing doctrine of merging the woman’s identity with that of her husband.
The roots of this doctrine can be traced to British colonial rule in the Victorian
era22. India was a British colony during the 19th century. All Indian laws enacted
at this time were deeply influenced by English laws and Victorian norms. The
marital exception to the IPC’s definition of rape was drafted on the basis of
Victorian patriarchal norms that did not recognize men and women as equals, did
not allow married women to own property, and merged the identities of husband
and wife under the “Doctrine of Coverture.”
21 To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99(6)
Harv. L. Rev. 1255, 1256 (1986).
22
Jill Elain Hasday, Consent and Contest: A Legal History of Marital Rape, 88 Calif. L. Rev.
1373 (2000).
Exception 2 violates the right to equality enshrined in Article 14 insofar as it
discriminates against married women by denying them equal protection from rape
and sexual harassment. The Exception creates two classes of women based on
their marital status and immunizes actions perpetrated by men against their wives.
In doing so, the Exception makes possible the victimization of married women
for no reason other than their marital status while protecting unmarried women
from those same acts.
Exception 2’s distinction between married and unmarried women also violates
Article 14 insofar as the classification created has no rational relation to the
underlying purpose of the statute. In Budhan Choudhary v. State of
Bihar23 and State of West Bengal v. Anwar Ali Sarkar24, the Supreme Court held
that any classification under Article 14 of the Indian Constitution is subject to a
reasonableness test that can be passed only if the classification has some rational
nexus to the objective that the act seeks to achieve.
But Exception 2 frustrates the purpose of Section 375: to protect women and
punish those who engage in the inhumane activity of rape. Exempting husbands
from punishment is entirely contradictory to that objective. Put simply, the
consequences of rape are the same whether a woman is married or
unmarried. Moreover, married women may actually find it more difficult to
escape abusive conditions at home because they are legally and financially tied
to their husbands. In reality, Exception 2 encourages husbands to forcefully enter
into sexual intercourse with their wives, as they know that their acts are not
discouraged or penalized by law. Because no rational nexus can be deciphered
between the classification created by the Exception and the underlying objective
of the Act, it does not satisfy the test of reasonableness, and thus violates Article
14 of the Indian Constitution.
Violation of Article 21 of Indian Constitution
Exception 2 is also a violation of Article 21 of the Indian Constitution. Article
21 states that “[n]o person shall be denied of his life and personal liberty except
according to the procedure established by law.” The Supreme Court has
interpreted this clause in various judgments to extend beyond the purely literal
guarantee to life and liberty. Instead, it has held that the rights enshrined in Article
23
AIR (1955) SC 191
24
AIR (1952) SC 75
21 include the rights to health, privacy, dignity, safe living conditions, and safe
environment, among others.
In recent years, courts have begun to acknowledge a right to abstain from sexual
intercourse and to be free of unwanted sexual activity enshrined in these broader
rights to life and personal liberty. In The State of Karnataka v. Krishnappa, the
Supreme Court held that “sexual violence apart from being a dehumanizing act is
an unlawful intrusion of the right to privacy and sanctity of a female.”25
In the same judgment, it held that non-consensual sexual intercourse amounts to
physical and sexual violence. Later, in Suchita Srivastava v. Chandigarh
Administration26, the Supreme Court equated the right to make choices related to
sexual activity with rights to personal liberty, privacy, dignity, and bodily
integrity under Article 21 of the Constitution.
Most recently, the Supreme Court has explicitly recognized in Article 21 a right
to make choices regarding intimate relations. In Justice K.S. Puttuswamy (Retd.)
v. Union of India, the Supreme Court recognized the right to privacy as a
fundamental right of all citizens and held that the right to privacy includes
“decisional privacy reflected by an ability to make intimate decisions primarily
consisting of one’s sexual or procreative nature and decisions in respect of
intimate relations.”27
Forced sexual cohabitation is a violation of that fundamental right28. The above
rulings do not distinguish between the rights of married women and unmarried
women and there is no contrary ruling stating that the individual’s right to a
privacy is lost by marital association. Thus, the Supreme Court has recognized
the right to abstain from sexual activity for all women, irrespective of their marital
status, as a fundamental right conferred by Article 21 of the Constitution.
25 (2000) 4 SCC 75
26 (2008) 14 SCR 989
27 (2017) AIR 2017 SC 4161
28 as “Right to abstain” from sexual intercourse is a long-recognized principle of Indian
Constitutional jurisprudence. Govind v. State of M.P, AIR (1975) SC 1378; Kharak Singh v.
State of U.P, (1963) AIR SC 1295
The judicial interpretation has expanded the scope of Article 21 of the
Constitution of India by leaps and bounds and “right to live with human
dignity” is thus, within the ambit of this article. Marital rape clearly violates the
right to live with dignity of a woman and to that effect, it is seen that the exception
provided under Section 375 of the Indian Penal Code, 1860 is in violation of
Article 21 of the Constitution.
Additionally, Exception 2 violates Article 21’s right to live a healthy and
dignified life. As mentioned above, it is well settled that the “right to life”
envisaged in Article 21 is not merely a right to exist. For example, there can be
no dispute that every citizen of India has the right to receive healthcare or that the
state is required to provide for the health of its constituents.29 In this vein, the
courts have repeatedly held that the “right to life” encompasses a right to live with
human dignity30. Yet the very existence of Exception 2, which fails to deter
husbands from engaging in acts of forced sexual contact with their wives,
adversely affects the physical and mental health of women and undermines their
ability to live with dignity.
The above conclusions clearly reflect that Exception 2 to Section 375 of the IPC
is an infringement of Articles 14 and 21 of the Constitution. It is time that Indian
jurisprudence understands the inhumane nature of this provision of law and
strikes it down.
Marital Rape as a ground for divorce
In India marital rape exists de facto but not de jure. The following criticisms can
be drawn based upon the exception clause under sec. 375 of IPC.
In Bodhisattwa Gautam v. Subhra Chakraborty31 the Supreme Court said that
“rape is a crime against basic human rights and a violation of the victim’s most
cherished of fundamental rights, namely, the right to life enshrined in Article 21
of the Constitution. Yet it negates this very pronouncement by not recognizing
marital rape.
29
Regional Director ESI Corpn. v. Francis de Costa, 1993 Supp (4) SCC 100; 5 D.D. Basu,
Commentary on the Constitution of India, 4711 (LexisNexis 2015)
30
C.E.S.C. Ltd. v. Subhash Chandra, (1992) 1 SCC 441
31
1996 AIR 922, 1996 SCC (1) 490
In India, the Protection of Women from Domestic Violence Act 2005 (passed
August 2005 entered into force October 2006) criminalizes marital rape as a
form of domestic violence, and therefore attracts a lesser jail term than non-
marital rape. This is the only form of penalizing marital rape in India, and it is a
civil remedy and not a criminal action.
In 2016, the then Union Minister of Woman and Child Development, Maneka
Gandhi had made this statement: “It is considered that the concept of marital rape,
as understood internationally, cannot be suitably applied in the Indian context due
to various factors like level of education/illiteracy, poverty".
Currently, Section 375 of Indian Penal Code (IPC) “sanctions sexual intercourse,
even if forced, between a married couple, if the wife is over 15 years of age". This
is the archaic law condoning statutory rape, which needs to be amended on an
urgent basis. But our lawmakers would much rather maintain the status quo,
where women are forced to give up all sexual agency once they enter the marital
contract.
The Justice Verma Committee report of 2013 on sexual violence laws had also
said that the exemption for marital rape “stems from a long-outdated notion of
marriage which regarded wives as no more than the property of their husbands"
and had recommended removing the marital rape exception.
In 2018, the Central government took a stand against criminalising marital rape,
stating that it would “destabilise the institution of marriage” and could become
an easy tool to “harass husbands”.
Anticipating of becoming it as an easy tool to harass is text book example of
‘substandard decisive attributes’ as it is ignoring an ongoing violations of
fundamental rights & ignoring an assault against ‘married women’ which do
expounds the existence of a regime of patriarchy when we being member of this
privileged society being ousted from due process of law and justice.
With the judiciary’s latest decision to dismiss the plea filed by Anuja Kapur, it is
clear that the odds are stacked against the women who want legal recourse against
sexual coercion in marriages.
