On criminalisation of marital rape: Part II - The Indian Context

By S Sanal Kumar

Only the act of sexual intercourse on certain given conditions was punishable as rape under Section 376 of the Indian Penal Code (IPC) before its amendment in 2013 following Nirbhaya case. Now, the offence of rape takes within its fold all carnal intercourses, descriptively, vaginal, anal, oral and bodily manipulations to cause penetration, to bring these acts under an umbrella definition. Exception 2 to Section 375 takes out sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, from the punitive net of rape.

Later in Independent Thoughts Vs. Union of India, the age of female was read down to 18 years, thus affording impunity to husbands for acts of sex on wives above majority mark. Now, plainly marital exemption is available to husbands in Indian households, where only ‘major couple’ relation exits.

Every legal system is founded on certain normative values springing from its religious firmament and cultural values. Vedic India, though later subsumed other foreign religions and its practices, by and large, gives primacy to familial relations. Sexual intercourse is an act for procreation of progeny and not an aimless pursuit for `biological need satiation’, is the theological exposition of institution of marriage in Indian culture. For Indians, family is at the core of the society which in turn in its expanded macro form, takes the shape of a nation.

Conjugal right to have sexual intercourse thus becomes embedded in Section 9 of the Hindu Marriage Act (HMA) as an essential attribute of connubial relationship. Legal remedy is provided for compelling restitution of conjugal rights with the manner of execution of the right by attachment of property of contumacious spouse (Order 21, Rule 32 of CPC).

Arguments founded on personal liberty guaranteed under Article 21 initially found favour with the Andhra Pradesh High Court in striking down Section 9 of Hindu Marriage Act as unconstitutional (Sareeta v. Venkitasubiah).

However, the Supreme Court later rejected this plea as preposterous in Saroja Rani v. Sudarshan Kumar. The Delhi High Court’s affirmation of constitutionality of Section 9 of the HMA (Harvinder Kaur v. Harmander Singh Choudhry) was endorsed by the Supreme Court in Saroja Rani’s case.

Authoring the judgment in Saroja Rani’s case, Justice Sabyasachi Mukharji observed.

"In India it may be borne in mind that conjugal rights i.e. right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself. See in this connection Mulla’s Hindu Law-15th Edn. P. 567-Para 443. There are sufficient safeguards in Section 9 to prevent it from being a tyranny. The importance of the concept of conjugal rights can be viewed in the light of Law Commission-71st Report on the Hindu Marriage Act, 1955- “Irretrievable Breakdown of Marriage as a Ground of Divorce, Para 6.5 where it is stated thus."

The pronouncements of the Supreme Court holding that denial of sex by spouse amounts to cruelty, upon which a decree for divorce can be granted, underscore the importance of reciprocal sexual rights of partners in the institution of marriage.

The outcry for criminalising marital rape has now made its march from reciprocal rights in matrimony to unilateral right of privacy of female partner.

The privacy judgment, KS Puttaswamy v. Union of India, defines privacy as something recognising the ability of individuals to control vital aspects of their lives and safeguard the autonomy exercised by them in decisions of personal intimacies, matters of home and marriage, the sanctity of family life and sexual orientation, all of which are at the core of privacy.

The decisional autonomy, when stretched to sexual relationship in marriage, the infringement of the same amounts to violation of fundamental right protected under Article 21. Non-consensual sex within marriage thus becomes a wrongful act, when tested on the touch stone of constitutionality.

The observations of Supreme Court in Independent Thought vs. Union of India also recognise a woman’s right to autonomy over her body. While deciding State of Karnataka Vs. Krishnappa, it was observed:

“Sexual violence apart from being a dehumanising act, is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity."

Suchitha Sreevastava Vs. Chandigarh Administration where decisional autonomy in reproductive choices was recognised, had sown the seeds of thoughts from which the clamour today for penalisation of marital rape takes its germination. The evolution of law on privacy and decisional autonomy in the 21st century jurisprudence is the sheet anchor of the present legal battle before the Delhi High Court, where declaration of Exception II to Section 376 of IPC as unconstitutional is sought.

The evolution of laws on privacy founded on Article 21, no doubt, makes non-consensual sexual intercourse between spouses an infringement on Article 21. But how far it is pragmatic to treat invasion on right to privacy occurring in between individuals be made a constitutional wrong remains an enigmatic issue. In the Indian context, the institution of marriage up on which a family comes in to being is considered to be sacrosanct entity.

Generally, sexual intercourse is the oil which fuels and nourishes the martial tie in most of the cases. Acts and advances in intimacy, at times may not be palatable to female partner, yet they yield to the call of passion and biological need to bloom the conjugal happiness to its full fragrance and fervour.

This bond cements together the family. Opening an avenue for criminalisation of marital rape would make the family atmosphere a `precarious precipice’ making the relations falling down at any time. It may not be uncommon in future when impulsive wives turning against their husbands alleging marital rape on estrangement.

In every bunch of civil and criminal cases following marital discord, one more item will be added – a prosecution for marital rape against husband. With this, the husband’s fate would be sealed in all litigation. Blatant misuse of the provision with no defense left to the male partner is the foreseeable scenario in future on criminalisation of ‘spousal rape’.

The Law Commission, in its 172nd Report, rejected the idea of making marital rape an offence saying “excessive interference with martial relations is not desirable”.

The Justice JS Verma Commission Report, following the Nirbhaya incident however, favoured the idea of penalising marital rape basing on the premise that accused and victim are married or in another intimate relationship is not a mitigating factor in an offence of rape.

With the evolution of law on privacy, non-consensual sexual intercourse, even between spouse is now an invasion on right to privacy. At the same time ‘family unit’, fundamental to social existence and life of mankind as a social being, turns out to be the point of concern in this constitutional exposition. If acts and advances in intimacy as offending right to privacy of an individual are taken out of the domestic milieu, it puts in peril not individual honor alone but the soul of familial relationship itself.

Balance has to be struck between individual right to privacy and institutional existence of family as a coherent unit. Unlike a civil remedy, a criminal prosecution for marital rape will have disastrous consequences on the institution of marriage and consequently on familial relations. Fearing a probable prosecution inherent in the institution of marriage for marital rape, getting married may become a nightmarish affair for men in future.

Use of force or assault, doing sexual violence etc can be punished under general penal laws. A rape on a wife living on judicial separation or where there is no cohabitation are events which can justifiably be criminalised, for ‘implied consent’ to sexual intercourse is deemed implicitly withdrawn on these happenings.

Without disturbing the cohesiveness of familial relationships with one spouse pursing criminal proceedings against the other, the intolerant acts of spouse including marital rape can be better tackled as an aberration in character. The behavioral disorientation of a spouse, not strictly criminal, be dealt with as a civil wrong or a graver form of tortious liability. The Protection of Women from Domestic Violence Act 2005 is a handy legislation in this direction.

The definition given to domestic violence under Section 3 takes within its fold ‘sexual abuse” and “verbal and criminal abuse’ as actionable under the Act. Sexual abuse in its expanded definition, ”any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women” is sufficient to deal with marital rape with the reliefs flowing from the Act.

The Protection order (Section 18) , Residence order (Section 19) and Compensation order for mental torture and emotional stress (Section 22) are effective remedial measures for taking on perpetrators of marital rape. The malady of marital rape, though not a serious concern of society at large, but still a cause for the feminist movements to agitate against, is effectively taken care of under the quasi criminal statute, Domestic Violence Act.

Constitution is an organic instrument containing rules of governance for the State to follow. Constitutional morality is in essence didactic dictates to the organs of government to be adhered to in administration.

Equality and liberty concepts may sound weird in complex and intimate family relations where passion predominantly prevails and not philosophies. Not ‘gender equality’ but ‘gender integration’ like the one in mythical ‘Ardhanaareeswara’ may beckon every household in India in the days to come.

This is the second in a two-part series on the criminalisation of marital rape.

Read the first part here.

S Sanal Kumar is an advocate at the Kerala High Court.