[Debriefed] The controversy surrounding Marital Rape: History, judicial precedents and the road ahead

India is one of the few countries in the world that has yet to criminalise martial rape.

The issue has been the subject of much debate of late in a country whose courts have increasingly been delineating the right to individual autonomy as a right that is to be cherished and protected.

With the Delhi High Court currently hearing petitions seeking the criminalisation of Exception 2 to Section 375 of the Indian Penal Code, which exempts husbands from being charged with rape if they have non-consensual sexual relations with their wives, the history of marital rape merits closer inspection.

Hale's Principle

The Exception, like many penal laws in India, continues to exist on our statute books as a colonial hangover. It stems from outdated notions of the relationship between a man and his wife, first crystallised by British jurist Sir Matthew Hale. In an unsupported, extra-judicial statement made in 1736, he said “but 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 hath given up herself in this kind unto her husband, which she cannot retract."

This statement, which came to be known as Hale’s Principle, formed the basis for the marital rape exception and was followed in England for many years. Under this principle, a husband could not be held guilty of raping his wife, as the wife gives up her body to her husband at the time of marriage.

During the British rule in India, this principle, like others, found its way into statute books that govern us to date. It was assimilated in the Indian Penal Code, drafted by Thomas Babington Macaulay in 1860.

“Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” reads the original text from 1860 Penal Code.

While Hale's Principle subsequently came to be criticised, it was not until 1992, in Regina (Respondent) and R. (Appellant) that the landscape of marital rape changed in the United Kingdom.

In this case, a man was convicted of attempting to rape his wife, and later challenged the decision. However, the conviction was upheld by the House of Lords, with Lord Justice-General Lord Emslie said,

"Nowadays, it cannot seriously be maintained that by marriage, a wife submits herself irrevocably to sexual intercourse in all circumstances."

While dealing with the question as to whether a husband can be held criminally liable for raping his wife, the Court noted:

“A wife is not obliged to obey her husband in all things nor to suffer excessive sexual demands on the part of her husband. She may rely on such demands as evidence of unreasonable behaviour for the purposes of divorce. A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule. Nowadays it cannot seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances. It cannot be affirmed nowadays, whatever the position may have been in earlier centuries, that it is an incident of modern marriage that a wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force.”

Concluding its judgment, the Court significantly noted:

"The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."

The Law Commission of United Kingdom, in its 205th report printed in 1992, also reviewed the laws around marital rape and presented a Draft Bill which recommended that the offences under Sections 2 and 3 of the Sexual Offences Act, 1956, which criminalised rape, should be extended to marital intercourse.

In the following years, many Common Law and Civil Law countries framed laws criminalising marital rape. In fact, there are only around 32 countries around the world that are yet to take a call on criminalizing marital rape. Most of these are developing countries.

To understand the meaning of marital rape, we must first understand the concept of ‘rape’ under the Indian penal system. It is a sexual assault/intercourse/forms of sexual penetration carried out against an individual without his/her/their consent.

Section 375 of Indian Penal Code (IPC) criminalises the offence of rape and its definition includes both sexual intercourse and other sexual penetration. The term ‘marital rape’ is not expressly defined under the Code, but Exception 2 of Section 375 excludes the application of this Section 376 when it comes to sexual intercourse or sexual acts between a husband and wife.

Interestingly, the Code doesn’t criminalize marital rape in general, but Section 376B criminalises sexual intercourse the by husband upon his wife during separation. Punishment for such an offence is a jail sentence of not less than two years, but which may extend to seven years, along with a fine.

This provision was added in 2013 through the Criminal Law (Amendment Act), 2013, keeping in mind the recommendation made by the Law Commission in its 42^nd report, which stated,

“This exception fails to take of note one special situation, namely, when the husband and wife are living apart under a decree of judicial separation or by mutual agreement. In such a case, the marriage technically subsists, and if the husband has sexual intercourse with her against her will or without her consent, he cannot be charged with the offence of rape. This does not appear to be right. We consider that, in such circumstances, sexual intercourse by a man with his wife without her consent should be punishable as rape.”

1. Independent Thought Case: Exception to Section 375 read down in 2017

Before 2017, a girl between the age of 15 and 18 was not protected by rape laws if her husband had non-consensual sexual intercourse with her.

Significantly, the Supreme Court in Independent Thought v. Union of India, read down the said Exception insofar as it relates to a girl child below 18 years. The Court opined that the “right of such a girl child to bodily integrity and to decline to have sexual intercourse with her husband has been statutorily taken away and non-consensual sexual intercourse with her husband is not an offence under the IPC.”

The Court further held that the Exception is arbitrary, capricious, whimsical and violative of the rights of the girl child. While doing so, the Court echoed the sentiment expressed by the House of Lords in Regina to hold that by reading down the Exception, it was not creating a new offence.

2. Nimeshbhai Bharatbhai Desai v. State of Gujarat: Marital rape ought to be a crime and not a concept

The Gujarat High Court in 2018 paved the way for a discussion on the abolition of the marital rape exception. In Nimeshbhai Bharatbhai Desai v. State of Gujarat, Justice JB Pardiwala held,

"The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized.”

On the arguments that marital rape will be misused after criminalization, and that it will pose a threat to the institution of marriage, using domestic violence laws as a standpoint, the Court held,

"It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of 'implied consent' in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status."

3. Marital Rape can be a valid ground for divorce: Kerala High Court

In August 2021, the Kerala High Court in a significant judgment said that marital rape, although not penalized in India, would be a good ground for divorce. A Division Bench of Justices A Muhamed Mustaque and Kauser Edappagath held,

“We, therefore, are of the view that marital rape is a good ground to claim divorce…In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife's body as something owing to husband and committing sexual act against her will is nothing but marital rape.”

4. Justice DY Chandrachud's comments during the Adultery case hearing

While hearing a case seeking the striking down of Adultery as an offence, Justice DY Chandrachud of the Supreme Court in 2018 made his stand on the issue of sexual autonomy of married women clear. He observed during that hearing,

“Does a woman or man lose their degree of sexual autonomy after marriage. According to me ‘no'...The right to say “no” (to sex) should be there after marriage also."

In the year 2013, the report of the Committee on amendments to Criminal Law, headed by by former Chief Justice of India JS Verma recommended that the Exception be removed.

While doing so, the Verma Committee also referred to how the criminalisation of marital rape should be accompanied by some changes in the attitude of prosecutors, police officers and the society at large.

“For example, in South Africa, despite these legal developments, rates of marital rape remain shockingly high. A 2010 study suggests that 18.8% of women are raped by their partners on one or more occasion. Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape. Changes in the law therefore need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship.”

The Committee also referred to a suggestion by Prof Sandra Fredman of the University of Oxford that “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.”

On the other hand, the Law Commission of India in its 172^ndreport refused to recommend deletion of the Exception regarding marital rape. While rejecting the recommendation, the Commission said,

“We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship.”

The Delhi High Court is currently hearing petitions challenging Exception 2 to Section 375 IPC. During one of the hearings, Justice C Hari Shankar expressed a prima facie view that if the Court were to strike down the Exception, it would amount to the creation of a new offence.

The High Court has repeatedly called upon the Central government to make clear its stand on the issue. The Centre had previously taken the stand that criminalising marital rape would adversely affect the institution of marriage. As such, the Court has given the government two weeks' time to come with a 'yes or no' answer on the issue of criminalisation of marital rape.

While replying to question in Rajya Sabha, the Centre recently stated that a process for comprehensive amendments to criminal laws in consultation with all stakeholders has been initiated

This response came from Union Minister of Women and Child Development Smriti Irani, while answering a question posed by CPI Member of Parliament Binoy Viswam on whether the government has taken any position regarding inclusion of 'marital rape' as an offence under the Indian Penal Code.