While Section 375 of the Indian Penal Code criminalizes all forms of sexual assault involving non-consensual intercourse with a woman, an exception to this section exempts unwilling sexual intercourse between a husband and a wife over 15 years of age from the definition of “rape” and safeguards such acts from prosecution. Even though in 2017, the Supreme Court strengthened protections for the girl child in Independent Thought v Union of India by criminalizing non-consensual sexual activity with a wife under 18 years of age, the court refused to comment on marital rape maintaining that it was not the issue that was being considered before the judges.
The origin of exceptions to rape laws such as these can be traced to British common law that migrated to many parts of the world with colonialism. Consequently, the concept of a contract of marriage that insinuated the wife’s consent to sex with her husband for all time was established in India during the British rule. Further, the traditional legal subordination of the wife to her husband because of the prevailing doctrine of coverture (which subsumes a woman’s legal rights by those of her husband) rendered the idea of consent irrelevant.
In 1857, a case in Massachusetts, The US was the first to use the concept of a marital ‘contract’ as a defense for marital rape. The court recognized the ‘right’ of a husband to have sex and even established his wife’s refusal as grounds for divorce. However, in R v R (1991) in the UK, the House of Lords established that the marital rape exemption did not exist in English law and was merely a common law fiction. This judgement reflected the social and cultural evolution of women’s rights in a marriage. The verdict was later reaffirmed in statute law in the Sexual Offences Act in 2003.
In contrast, the understanding of marriage in the classical Indian context has been to define marriage as “divinely ordained” and so the scope of rights of spouses have been beyond criminal law. As a result, the argument has been made that the state cannot be said to impose constraints on something considered sacred. However, as The Hindu Marriage Act of 1955 has provisions for divorce and lays out restrictions which did not exist in classical Sanskrit law and are now widely accepted, the argument for non-interference of the state remains unconvincing.
There has been significant resistance to criminalizing marital rape in India. The Justice Verma Committee was set up in 2013 to answer the call for stronger ratification on crimes against women following the Nirbhaya rape case. The recommendations of the Committee included the removal of the exception for marital rape and inclusion of specification in the law that the relationship between the perpetrator and the victim should be considered irrelevant relating to inquiries into crimes of sexual violations.
However, the suggestion was rejected by the parliamentary panel to which the report was submitted on grounds such as the destabilization of marriage as an institution and the possible harassment of husbands. A paternalistic rationality of the state for not criminalizing marital rape was the promotion of the public interest by maintaining harmonious marital relationships.
In doing so, such judgments established a certain sphere of private intimacy, a concept that is not unique to India. The 14th Amendment of the constitution of the United States protects a general right to privacy within the family. In 1965, Griswold v Connecticut highlighted the right to marital privacy by invalidating a state law prohibiting the sale of contraceptives to married couples. The Court indicated that penumbras in the Bill of Rights have created zones of privacy. In the 2003 landmark civil rights case Lawrence v Texas, the court negated the sodomy law in Texas and 13 other states legalizing same-sex sexual activity in the US. The court held that no “majoritarian sexual morality” could override legitimate privacy interests.
The recognition of bodily autonomy of women is a step towards implementing the guarantee of Article 21 of the Indian Constitution to a healthy and dignified life. A three-judge bench in India ruling on the rape of an eight-year-old child held in Karnataka v Krishnappa (2000) stated that “sexual violence apart from being dehumanizing is an unlawful intrusion of the right to privacy and sanctity of a female. It offends her (the victim’s) dignity.”
Further, in the 2003 case Sharda v Dharmpal, the appellant and respondent were spouses and the case involved a divorce proceeding. It was held that the matrimonial court had no jurisdiction to compel a woman to undergo a medical examination as it violated her personal liberty under Article 21. In addition, in the Suchita Srivastava case, which arose in the context of the Medical Termination of Pregnancy Act, 1971 which governs abortions in India, the court held that the right to make choices related to sexual activity is comparable to the right to bodily integrity, dignity, and personal liberty.
In the United States in 1973, the landmark decision Roe v Wade ruled that a right to privacy extended to the reproductive rights of women. A recognition of the right to personal privacy and the guarantee of certain zones of privacy existing in the constitution was a revolutionary interpretation of the 14th Amendment. The Court recognized that the fundamental right to abortion was included within the guarantee of personal privacy. In a case regarding spousal consent for abortion in 1992, the court upheld Roe v Wade and highlighted the significance of respect for the private realm of family life.
In the 2017 landmark judgement K. Puttaswammy v Union of India and Ors, the Supreme Court of India recognized the fundamental right to privacy in Article 21. While this important judgment has far-reaching implications on the validity of Aadhar, development of surveillance laws, and decriminalization of homosexuality, the feminist critique of this constitutional right intimates the dangers of privacy when it is used as a tool to veil and uphold patriarchal concepts.
In an admirable interpretation of the judgment, the concurring opinion of the judges was that women have a sacrosanct interest in privacy as an empowering tool despite the ability of the concept of privacy being used against them in the past. By acknowledging the autonomy of women being protected under the constitution, the judgment has made it easier to question the constitutional validity of the marital rape exception in the IPC.
Justice DY Chandrachud writes about privacy being the “constitutional core of human dignity” and distinguishes a type of privacy as “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.”
Justice Nariman expounds on the importance of the dignity of an individual, “the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices.”
Justice Kaul emphasizes choice, “privacy is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so” and at the end “is an individual’s choice as to who enters his house, how he lives and in what relationship.”
These statements call into question the remedy of restitution of conjugal rights. The origins of this redressal system are in feudal English law. Although the UK abolished this remedy in 1970, India still has these provisions which involve restoration of “all rights and privileges arising from marriage including the mutual relationship of companionship, support, and sexual relations” in case of abandonment.
A three-judge bench of the Supreme Court of India is set to hear a petition challenging the legality of this provision. Not only does this provision violate the right to privacy and individual autonomy of both men and women guaranteed under Article 21, but it also puts societal concerns such as morality before the dignity of individuals without a compelling interest for the state to be forced to interfere.
Denying women dignity within the domestic sphere would constitute as a violation of their decisional autonomy characterised by the court in Puttaswammy. In Lillu @Rajesh v State of Haryana in 2013, the court ruled on the right of a rape survivor to privacy, physical and mental integrity as well as dignity. The state held that in view of International Covenant on Economic, Social, and Cultural Rights 1966; United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 1985, rape victims are entitled to legal recourse that does not retraumatize them. Failing to provide any legal recourse to victims of marital rape because of the exception in the IPC goes directly against the survivors’ rights.
Another argument as to why marital rape should be illegal in India is assessed from the 1990 judgement of State of Maharashtra v Madhukar Narayan Mardikar. The case dealt with a police inspector who allegedly had non-consensual intercourse with a woman. The court questioned the character of the victim and reduced the punishment of the inspector but held that despite “the dark side of her life” the victim was entitled to her privacy which could not be violated. This was a strong statement for the bodily integrity of a woman, as an eventuality of her privacy. Denying a married woman the same protections violates her fundamental rights.
In the landmark decision in Joseph Shine v Union of India in 2018, the Indian Supreme Court unanimously invalidated Section 497 of the Indian Penal Code 1860 which criminalized a man having consensual sex with a married woman. The discriminating and archaic law was based on the assumption of women being considered property of their husbands. The judgment emphasized on the right to dignity and bodily autonomy of women. The ability of a woman to make choices on every aspect of marriage as embodied by this judgment contradicts the idea of consent being a presupposition of marriage.
India is one of the 32 countries alongside China, Pakistan, and Saudi Arabia that has not criminalized marital rape. While the assertion that the exception to Section 375 of the IPC protects the most intimate sphere of personal privacy of married couples, it actually infringes on the individuals’ right to privacy, dignity, and personal liberty. The exception should be removed in order to ensure that women can exercise their constitutional right to decisional privacy regardless of their marital status.
The Puttaswammy judgement made no distinctions between the rights of married and unmarried women and nothing in Indian jurisprudence suggests that women forego their fundamental rights after marriage. The marital rape exception is an archaic and misogynistic stipulation that has no place in modern India.