KOCHI: Over the past few days, the Supreme Court of India has been hearing a crucial case concerning human rights violation — the long-pending demand to criminalise marital rape.
On Wednesday, Chief Justice D Y Chandrachud, who is retiring next month, deferred the case, stating that the arguments of the lawyers would not be concluded in the “foreseeable future”. Now, another bench will take up the case after four weeks.
Many wonder why such a straightforward case is made to appear like a conundrum. Notably, India is one of less than 40 countries where marital rape is yet to be criminalised. We have countries like China, Pakistan and Iran for company. Even countries such as Nepal and Bhutan have abolished this archaic exception.
Before we get to that, a quick recap.
This is not the first time that a petition regarding marital rape has appeared before a court. In 2021, when a husband appealed a divorce granted by a family court, the Kerala High Court made a landmark observation: “Treating a wife’s body as something owed to the husband and committing sexual acts against her will is nothing but marital rape.”
The court ruled that marital rape was a valid ground for divorce. “Merely because the law does not recognise marital rape under penal law, it does not inhibit the court from recognising it as a form of cruelty,” it noted.
In March 2022, the Karnataka High Court stated: “... an act is an act; rape is rape, be it performed by a man, the ‘husband,’ on the woman, ‘wife’”. The court refused to dismiss a rape case filed against a husband. Subsequently, the Karnataka government took a stand in support of criminalising marital rape.
The starting point for the current litigation in the Supreme Court was a split verdict at the Delhi High Court in May 2022. One judge held that the legal exemption allowing husbands to rape their wives was “unconstitutional”, while the other held that it was not.
Subsequently, the petitioners moved the Supreme Court, which clubbed all petitions pertaining to marital rape exemption in January last year. Thereon, the case has been dragging on.
Representing the Union government, Solicitor General Tushar Mehta argued on Wednesday that the “ramifications are huge”.
“We are not saying that sexual intercourse can be done without consent, but it’s a polycentric problem and this court will have to examine a series of issues,” he added.
Earlier this month, the Centre had filed an affidavit in the court, stating: “It is submitted that a husband certainly does not have any fundamental right to violate the consent of the wife, however, attracting the crime in the nature ‘rape’ as recognised in India to the institution of marriage can be arguably considered to be excessively harsh and therefore, disproportionate.
It is submitted that the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. The Central Government asserts that a woman’s consent is not obliterated by marriage, and its violation should result in penal consequences. However, the consequences of such violations within marriage differ from those outside it. Parliament has provided different remedies, including criminal law provisions, to protect consent within marriage. Sections 354, 354A, 354B, 498A IPC, and the Protection of Women from Domestic Violence Act, 2005, ensure serious penal consequences for such violations.”
Not many buy the argument. “Rape is rape,” says Advocate Sandhya Raju, founder of Constitutional Rights Research and Advocacy.
“The issue lies in the distinction made regarding rape within marriage. If we simply call it rape, without any qualifiers, society’s mental block will crumble, and we can address the issue more easily.”
She says there is no complexity to the case. “Our law defines rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation, or fraud, or when she is intoxicated, duped, or of unsound mental health. If the wife experiences any of these, it is rape,” she says.
Sandhya believes that it is that patriarchy prevents sections of society, and the judiciary, from recognising this crime for what it is. “See, as per the erstwhile IPC [Indian Penal Code], if the wife is below 15 years, and now with BNS [Bharatiya Nyaya Sanhita], if the wife is below 18, it is considered rape. Why is there a distinction once she turns 18?” she asks.
Arguments against removing the exception for marital rape often focus on the supposed fragility of the ‘institution of marriage and family’. Appearing for the petitioners, senior lawyer Karuna Nandy argued in court that “marriage is not an institution but a personal matter”.
Taking note, Sandhya asks: “Moreover, if the institution of marriage is so flimsy that it would collapse if husbands are not allowed to rape their wives, why continue it?”
Meanwhile, Sandhya J, a lawyer from Thiruvananthapuram and a member of the NGO Sakhi - Women’s Resource Centre, plans to file a petition at the Supreme Court before the next hearing in November.
“We have been following the case closely and still don’t understand why the court has been able to give a quick verdict,” she says.
She points out inconsistencies in the law. “As per BNS, marital rape is recognised if the wife is below 18. Second, thanks to an amendment, it is an offence for a man to have non-consensual intercourse with his wife if they are separated. The punishment is two to seven years of jail time in such cases. Does this mean that if they live under one roof, rape is acceptable?” she wonders.
Former judge Kemal Pasha believes there should not be any difficulty for India to criminalise rape like most of the other major nations. “Whether you are married or not, rape is rape. In modern times, we must acknowledge this. Consent cannot be inferred, and the exception to the law is archaic,” he says.
He is referring to Exception 2 of the law, which states, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.”
This exception is rooted in 19th-century British colonial views that regarded husband and wife as a single entity. That said, Britain recognised marital rape as a crime in 2003.
“It is blatantly unconstitutional,” says Dr G Mohangopal, former director of the National Judicial Academy.
As per the Constitution, everyone has equal rights in the country. That’s asserted in Articles 14 to 18. “The issue pertains to every individual and society as a whole. In a civilised nation, we cannot leave any kind of rape unpunishable,” he says.
According to him, to take away the woman’s bodily autonomy, right to safety and equality within marriage is unconstitutional.
He gives the example of a fictional 20-year-old unmarried woman. If she experiences rape by a stranger, she can approach the police and file a complaint. “However, if she is married, she has to depend on her husband’s goodwill alone. The belief that he will not harm her without the protection of law. This makes marriage a licence to rape in our country.”
Mohangopal dismisses concerns being raised about ‘institution of marriage’ and fake cases. He points to laws such as the Dowry Prohibition Act, 1961, and the SC/ST (Prevention of Atrocities) Act, 1989.
“Based on our experience, regarding these Acts, it is clear that the risk of false cases being made is low, as no complaint can stick without adequate evidence. The real risk is the victim of rape will be helpless to prove that her complaint is bonafide.”
Mohangopal nails the entire issue on socio-cultural bias. The opposition to criminalising marital rape is rooted in male dominance, he says.