Marital Rape through the lens of Judicial Activism in India

By Srushti S Kekre & Udisha Surana

A man is a man; an act is an act; rape is a rape, be it performed by a man the “husband” on the woman “wife”

-Justice M. Nagaprasanna

The prevalence of marital rape in India emanates from the archaic doctrine of coverture where a wife is considered as a chattel of her husband. Additionally, it is perceived that after marriage wife’s civil identity should be subsumed by the husband resulting in forfeiting her autonomy and giving irrevocable consent for sexual intercourse. This social construct devalues the existence of a woman, subjecting her to the cruelty of marital rape.

The Indian Penal Code under Exception 2 of Section 375, provides immunity to the husband from prosecution in case of forceful sexual intercourse with his wife. As per National Family Health Survey, two-third of married women have experienced sexual violence perpetrated by their husbands. Over a hundred jurisdictions across the globe have either criminalized marital rape or have specific provisions to file a criminal complaint against husband for rape. However, India continues to fall behind in adapting the new socio-legal paradigms, instead, it is reinforcing its stance of not criminalizing marital rape in order to maintain the sanctity of marriage.

In the laudable judgment of Independent Thought v. Union of India, the Apex court held that the exception to marital rape will not be applied to girls between the age of 15 and 18 years. The case highlights the distinction between a married and unmarried girl is not supported by the principles of reasonable classification and hence violates the right to equality under Article 14 of the Constitution. Furthermore, it was found that when a minor girl is subjected to forceful sexual intercourse by her husband, she can endure severe trauma which in turn can be detrimental for her physical and mental well-being. The exception is also violative of Article 21 and Article 15 as it restricts the freedom to develop mentally, physically and economically as an independent female adult.

It is a landmark judgment for protecting the rights of minor girls. However, the court has failed to take into consideration the cases of consensual sexual intercourse where the husband is also a minor. India has witnessed a lot of instances where both parties being minor have eloped. It is imperative to acknowledge the innocence of both the minor boy and girl, failing to do so can be detrimental for the minor boy. In addition to the forgoing the court has also refrained from making any observation about the non-consensual sexual intercourse when the wife is above 18 years of age.

Marital Rape has become one of the most alarming issues in India, where justice is being denied due to outdated and orthodox laws. Consequently, the judicial system has portrayed an inconsistent and anarchic response towards the sensitive issue of marital rape. The High court of Chhattisgarh in the Dilip Pandey Case held that any sexual act by a legally wedded husband is not an offence of rape, even if it is by force or against her will. Appalled by the judgement various petitions were filed bringing a new wave of judicial activism based on the tenets of transformative constitutionalism and progressive realization of rights with the evolution of society.

The Gujarat High Court in its laudable judgement of Nimeshbhai Desai v. State of Gujarat, condemned the existence of marital rape in India. The court opined that “It is a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.” 

In a similar vein, Kerela High Court in a recent judgment recognized marital rape as a sufficient ground for divorce. It held that albeit marital rape is not an offence, the acts of the husband amount to physical and mental cruelty which is a sufficient ground for divorce under the aegis of law. Notably, the Karnataka High Court in Hrishikesh Sahoo Case ruled that “The exemption provided under Section 375 cannot be absolute in nature as no exemption in law can be so absolute that it becomes a license for commission of crime against society.” Subsequently, an appeal was made before the Supreme Court, wherein the court refused to stay the criminal trial against the husband for allegedly raping his wife. This positive step taken by the judiciary signals a shift in judicial activism by interpreting marital rape as a violation of woman’s fundamental right to body and sexual autonomy. These incidents underscore the importance of legislative action to prohibit marital rape.

However, the Hon’ble Delhi High Court has recently delivered the much-awaited ruling on marital rape, whereby, the division bench issued a conflicting opinion on the legality of Exception 2 under section 375. Justice Rajiv Shakdher held that the exception is unconstitutional in nature as “the classification between married woman and unmarried woman is unreasonable and arbitrary.” Furthermore, the learned judge opined that the exception is violative of Article 14, Article 15, Article 19 (1) (a) of the Constitution as it deprives a woman of her sexual autonomy based on her marital status and observed that conjugal expectation does not grant an unfettered right to the husband to have sexual intercourse with his wife without her consent.

Conversely, Justice Hari Shankar was of the opinion that sexual intercourse between a husband and a wife is sacred. He stated that the concept of marital rape is “antithetical to the very institution of marriage.” Wherefore, he holds this exception to be constitutional in nature. The judge further opined that “it would be artificial to assume that the degree of outrage felt by a wife who is compelled to have sex on a particular occasion with her husband, despite her unwillingness, is the same as the degree of outrage felt by a woman who is ravaged by a stranger against her will.”

Upon analysing the judgement, it can be construed that the rationale behind the said remarks is unfounded and erroneous as there is no legal principle to support such discrimination and prejudice. Veritably, it is pertinent to recognise that a married woman’s proximity to her husband makes her more susceptible to rape and other physical and mental violence on a regular basis.

The crime committed against a woman should be judged on the basis of the intention and severity of the offense.  The assumption that the perpetrator’s marriage and relationship with the victim should be placed before the legal requirement of consent is highly flawed and blatantly violates fundamental rights of the woman.

The dichotomy in the opinions of both judges mirrors the duality present in the society, where on one hand it reflects the deep-rooted bigotry and regressive mindset towards women and their rights, and on the other it highlights the ambition and intention to effect systematic change.

The high courts have taken a diverse stand concerning the constitutionality of marital rape. Sexual autonomy is vital for an individual’s mental and physical health however, the exception under section 375 places an unjust limitation on right to life of a married woman. In the light of these precedents, it is observed that the recent judicial interpretations by the various high courts should be based on the touchstone of modern social jurisprudence which propagates that marriage is solemnized between equal partners and the husband is not superior to the wife.

The Hon’ble Supreme Court in a catena of judgments has ardently emphasized on protecting the basic human rights of a woman viz. right to privacy, right to live with dignity, right to bodily integrity right to sexual autonomy etc., that are an integral facet of Article 21 of the Constitution. Therefore, merely solemnizing a marriage does not confer irrevocable and implied consent of the parties. The fundamental rights of an individual should always prevail over conjugal rights.

Additionally, it is violative of Article 14 of the Constitution as the provision discriminates against women on the basis of their marital status and exempts husbands from forced sexual intercourse with their wives. The practice of marital rape is a tacit denial of various human rights envisaged under the international legal instruments viz. Declaration of Elimination of Violence Against Women and Universal declaration of human rights. Consequently, Justice Verma committee recommended criminalization of marital rape, however, the government failed to incorporate the recommendations in the amended criminal laws. The large-scale subjugation of women to this coercive practice has led to severe physiological and psychological harm that infringes an individual’s right to life. 

Both the judiciary and the legislature have failed to protect the fundamental rights of a married women.  The judiciary’s minimal efforts are inadequate and its high time that the government criminalises marital rape accompanied by widespread measures of raising awareness for women’s rights and educating people to view women as equal partners in life, paving the way for real progress.

[The Authors are Final Year students BA-LLB (Hons.) in Gujarat National Law University. ]


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