The issue of marital rape has perplexed the law makers and the society alike, since time immemorial, across the world. Marital rape was eventually criminalized in most of the countries as they realized that sexual intercourse within a marriage cannot be regarded as a right of a spouse. As per a Report published by India Today Web Desk on 12.03.2016, India is one of the 36 countries where marital rape is not criminalized as on date. We are in the company of nations like Pakistan, Bangladesh, China, Afghanistan, Myanmar, Iran, Malaysia, Nigeria, Bahrain, Syria and Sudan. As is being detailed in this write up, what we have still been able to achieve so far in our country is that unnatural sex or use of pervert means by a husband with his wife may amount to rape if it is without her consent, but forceful natural sex by a husband with his wife is yet to be criminalized.
Commonly understood, marital rape or spousal rape is the act of sexual intercourse with one's spouse without the spouse's consent or against will. Lack of consent is the essential element.
Progress of law in India can be traced back to two distinct phases – first, prior to the 2013 amendment to the Indian Penal Code, 1860 ("IPC"), and second, post the said amendment.
Prior to the 2013 amendment, Section 375 IPC defined rape as sexual intercourse with a woman under any of the six circumstances mentioned in the said Section. Essentially, if the act of sexual intercourse with a woman was against her will or without her consent or was under any misconception or fear, the man was guilty of rape. If the woman was under 16 years of age, even consent was immaterial. Exception to Section 375 IPC provided that sexual intercourse by a man with his wife, wife not being under 15 years of age, was not rape.
A set of petitions was filed in the Supreme Court of India, since the year 1997, inter alia praying that it be declared that "sexual intercourse" as contained in Section 375 IPC shall include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration. The said petitions came to be decided by the Supreme Court of India in its Judgment dated 26 May 2004 reported as 2004 (5) SCC 518 Sakshi V/s Union of India. The Supreme Court held that it was not persuaded to enlarge the definition of rape as given in Section 375 IPC. The Supreme Court expressed its hope and trust that the Parliament will make appropriate legislation in this regard.
At the cost of being reminded at this stage of one of the most barbaric acts against the person of a woman, it needs to be stated here that it took the happening of the Nirbhaya gang rape and murder for the Parliament to wake up and constitute the Justice J.S.Verma Committee which gave a report in record time and formed the basis of the Criminal Law (Amendment) Act of 2013 which accepted some recommendations of the Committee. However, the recommendation of criminalizing marital rape was still not accepted.
One consequence of the amendment of 2013 was the change of definition of rape in Section 375 IPC. As per the amended definition, a man is said to commit rape not only if he indulges in sexual intercourse against the will or consent of a woman or by placing her under any fear or misconception, but also if he indulges in acts of perversity against the person of a woman. Essentially, the amended definition of rape conforms to the prophetic prayer in Sakshi batch of petitions.
Coming back to the issue of marital rape, even after the 2013 Amendment, Exception 2 to Section 375 IPC read that sexual intercourse or sexual acts by a man with his wife is not rape (if the wife is above 15 years of age).
Another batch of Writ Petitions came to be decided by the Supreme Court of India on 11 October 2017 reported as 2017 (10) SCC 800 Independent Thought V/s. Union of India, in which the Supreme Court held that Exception 2 to the now-amended Section 375 IPC needs to be read in a manner that for the said exception to be available to a husband, the wife has to be above 18 years of age and thus the threshold age of 15 years prescribed by the 2013 amendment was struck down and replaced. However in this judgment as well, stalemate as to marital rape and its criminalization remained, as the Supreme Court clarified, and rightly so, that the issue of marital rape was not before it and thus the same was not being decided.
A set of Writ Petitions, with the lead matter being W.P.(C) 284 of 2015 RIT Foundation V/s Union of India, in which the prayer essentially is to criminalize marital rape, is presently pending hearing and adjudication in the High Court of Delhi. The challenge is primarily based on Exception 2 to Section 375 IPC being unconstitutional and violative of fundamental rights of married women under Articles 14, 15, 19 and 21 of the Constitution of India (Ref.: Order dated 18.07.2017 of the High Court of Delhi in WP(C) No. 284/2015).
Now let me come to a silver lining among the dark clouds. There is an overwhelming misconception that Exception 2 as it is exists in Section 375 IPC grants absolute immunity to a husband from prosecution for any act against the person of his wife which would otherwise constitute rape under Section 375 IPC. A careful reading of Exception 2 reveals that the immunity is only for sexual intercourse or sexual acts by a husband with his wife (with wife being more than 18 years of age). In Sakshi, the Supreme Court has defined "Sexual Intercourse" as heterosexual intercourse involving natural intercourse between a man and a woman, adopting the dictionary meaning, thus the expression of immunity used in Exception 2 has to be given a restrictive meaning and is not to be applied across the board to the entire definition of rape in Section 375 IPC. In any case an exception is always subservient to the main provision [2004 (6) SCC 672 Maulavi Hussein Haji Abraham Umarji Vs. State of Gujarat and Another].
In other words Exception 2 to Section 375 IPC as it exists today does not grant any immunity to a husband from prosecution for (marital) rape if he commits any such pervert act against the person of his wife which has been defined as rape in Section 375, other than sexual intercourse and sexual acts (as defined in Sakshi), even if the wife is above 18 years of age. This interpretation of the scheme of the statute, for which reference may also be had to other provisions such as Section 376-B IPC and Section 376-C IPC, has recently found favor with the High Court of Chhattisgarh at Bilaspur. The High Court, in its Judgment dated 11.06.2020 in CRR No. 1415 of 2019 N. V/s. State of Chhattisgarh, has accepted the plea of the victim based on the above interpretation, at the prima facie stage of framing of charge against the accused-husband in a case involving allegations of unnatural sexual intercourse and insertion of external objects by a husband on the person of his wife.
I wish to repeat that India is still one of the very few countries who have not criminalized marital rape. A glimpse of how the Union of India views the matter is found in the Counter Affidavit filed by them in the Supreme Court in Independent Thought, in which, as recorded in the Judgment dated 11.10.2017, it is apprehended by the UOI that criminalization of marital rape cannot be brought about in view of socio economic conditions of the country. This, in my opinion, is not a valid circumstance or reason, particularly if we wish to view the Indian society as progressive rather than regressive. This reasoning is in fact just the opposite- in view of prevailing socio-economic conditions in our country, where oppression of a large part of women population and violence against them within their household is commonly known, criminalization of marital rape is all the more essential. All the more so, if the system really intends to effectively recognize fundamental rights, as enshrined in the Constitution of India, without any discrimination between men and women.
It needs to be understood that the IPC, providing immunity against marital rape, is a statute of the year 1860 and India has travelled more than 160 years ever since. I am reminded of the Judgment dated July 01, 1983 of the Andhra Pradesh High Court in T.Sareetha V/s. T.Venkata Subbaiah (A.I.R 1983 A.P. 356) by way of which Section 9 of the Hindu Marriage Act, 1955 was struck down as being offensive of inviolability of the body and the mind and of the integrity by invading marital privacy and domestic intimacies of a person. It was held that the provision for restitution of conjugal rights was essentially a law compelling sexual intercourse. I may say no more about the right of a wife- to her dignity, to her person, to her body, and to her will and consent for sexual intercourse including the right to refuse. To quote from the judgment, Justice P.A. Choudary, author of the judgment, had said:
"..any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity. Such a definition is bound to include body's inviolability and integrity and intimacy of personal identity including marital privacy."
It is another matter that the High Court of Delhi in the same year gave a contrary judgment in Harvinder Kaur V/s. Harmandar Singh Chowdhary on 15.11.1983 [AIR 1984 DELHI 66] upholding the validity of a decree of restitution of conjugal rights, which judgment was upheld by the Supreme Court of India in Saroj Rani Vs Sudarshan Kumar Chadha [A.I.R 1984 SC 1562], overruling T.Sareetha.
Nonetheless, we are still 37 more years down the road!
I may endeavour to give one more suggestion before I conclude. It is true that possible misuse of a provision is a theory which is neither here nor there and has time and again been discarded by the Supreme Court, so the Parliament ought not to take the refuge of any such theory here. My suggestion is, instead of providing absolute immunity to a husband in cases of marital rape, the Parliament may consider criminalizing marital rape though with lesser stringent sentencing provision than is otherwise provided for rape. In fact a glimpse of the same is already visible in Section 376-B IPC where sexual intercourse by a husband with his wife living separately, without her consent, is punishable with imprisonment for a term not less than two years but extendable to seven years. The Courts will of course do a good job of deciding every such case on its own facts by separating the grain from the chaff and will adopt a suitable sentencing policy based on the nature of proved allegations in each such case.
Views are personal only.
(The author is an Advocate-on-Record practicing in the Supreme Court of India since the year 2000 and had represented the victim in the referred case decided by the High Court of Chhattisgarh at Bilaspur by Judgment dated 11.06.2020 in CRR No. 1415 of 2019 N. V/s. State of Chhattisgarh)