Abstract:
The issue of marital rape is an ongoing loophole in the Indian criminal law justice system, in which marriage supersedes the right of the woman to give her consent. This paper explores the history of the issue, its laws, and jurisprudence on the topic of marital rape in India, especially as it relates to Section 63 of the Bharatiya Nyaya Sanhita, 2023. The case law is analysed to show the contradiction between the constitutional rights of dignity and bodily autonomy, except marital rape.
Introduction:
Rape is an infringement of human dignity and autonomy. However, marital rape is not yet treated as a crime in India. Although there is the concept of consent in Section 63 of the Bharatiya Nyaya Sanhita, 2023, Exception 2 states that non-consensual sexual acts by a husband against his adult wife cannot be termed as rape. An extension of colonial-era legal and social beliefs, Exception 2 makes the existence of an inherent conflict possible where an act of rape performed by a stranger is not considered a crime when done by a husband. The present paper analyses the history behind such an exception in the context of marriage superseding women’s autonomy in sexual relations.
The History of Marital Rape in Indian Law
Indian law on marital rape is a colonial inheritance, not an indigenous doctrine. Its source is Sir Matthew Hale’s seventeenth-century proposition that a husband cannot rape his wife because, by matrimonial contract, she has given herself up to him and ‘cannot retract’. The enactment of the Indian Penal Code in 1860 put this principle in section 375 where intercourse by a man with his wife is an exception provided she is not under ten years old. However, the first time the principle of marital rape became subject to public scrutiny was due to the revelation of child marriage. The death of a ten-year-old wife after sexual intercourse with her husband in Calcutta in 1889 sparked outrage and prompted the enactment of the Age of Consent Act of 1891, raising the age limit to twelve. Subsequent amendments increased it to thirteen in 1925 and fifteen in 1940. In both cases, the reform only altered the number without challenging the principle of marriage overriding the wife’s consent. India introduced its first limited reform to the exception clause in 1983. The law permitted the prosecution of a husband who indulged in sexual intercourse with his wife without her consent only if the couple were living apart due to a separation order or custom. This essentially implied that, in most cases, a wife’s rejection of sex did not amount to rape if she was living with her husband. The issue came into focus again after the Delhi gang rape case in 2012. The Justice Verma Committee proposed the exclusion of the marital rape exemption because marriage cannot be taken as an indicator of permanent consent for sexual intercourse. However, the Parliamentary Standing Committee on Home Affairs later rejected this recommendation. It is also emphasised that the relationship between the perpetrator and the victim should not influence the determination of rape.
However, the Parliamentary Standing Committee on Home Affairs was against the proposal, saying criminalizing marital rape can affect the institution of marriage and the family. The Criminal Law (Amendment) Act 2013 thus modified the definition of the crime of rape but retained the marital rape exception, thereby creating a legal inconsistency. The age of consent was universally raised to eighteen years, but the exception protected husbands from the charge of rape in the case of a wife aged fifteen to eighteen years. Consequently, the Supreme Court in Independent Thought v Union of India, 2017, read down the exception and held that sexual intercourse by a husband with his wife below eighteen years of age would constitute rape. However, it remained silent on the issue of whether the exception should be deleted in the case of an adult wife. Indian courts have since continued to grapple with the issue of marital rape without removing the exception. The Bharatiya Nyaya Sanhita 2023 retained the marital rape exception in section 63. The protected age in the newly drafted law remains eighteen. Consequently, while the rights of wives and minor girls have been improved in India, non-consensual sexual intercourse between an adult husband and wife continues to remain outside the offence of rape.
JUDICIAL TRAJECTORY
For decades, the Indian judiciary has treated the marital bedroom as a place the Constitution did not reach. The Indian judiciary’s interpretation of marital rape law is a gradual and contentious one.
- T Sareetha v T Venkata Subbaiah(Andhra Pradesh High Court, 1983)
A husband applied to a court to adjudge his wife to return to his custody on the ground of ‘restitution of conjugal rights’ as provided under Hindu Marriage Act. Justice P A Choudary struck down this provision of the Hindu Marriage Act by stating that the compulsory return of the wife to the custody of her husband might end in sex against her will, which would violate her right to privacy and dignity guaranteed by Article 21 of the Constitution and termed the restitution of conjugal rights remedy as “an engine of oppression” for husbands. This was the first judgment in India which held that the bodily autonomy of a woman is not waived upon marriage.
- Harvinder Kaur v Harmander Singh Choudhry (Delhi High Court, 1984)
The case before us was a suit for a decree of restitution of conjugal rights filed by the husband against his wife. The constitutionality of the provision was challenged by the wife. The wife’s plea largely drew inspiration from the Andhra Pradesh High Court ruling in T Sareetha v T Venkata Subbaiah which had held section 9 to be unconstitutional on the ground that a decree for restitution could interfere with an individual’s sexual and reproductive autonomy. Nevertheless, the Delhi High Court disagreed with that view and affirmed that the provision was constitutionally valid. Justice Avadh Behari Rohatgi ruled that restitution of conjugal rights was intended to ensure that spouses live together and share companionship, and hence it did not legally require sexual intercourse. The Court ruled that a restitution decree could direct a respondent to return to cohabitation in the matrimonial home, yet the Court lacked both the authority and the means to enforce sexual intercourse within the marriage. Consequently, it dismissed the argument that section 9 violated marital privacy or sexual autonomy. The Court also emphasized that the provision was intended to protect the marriage and promote reconciliation, not to demand sexual relations. Thus, the decision was more of a traditional judicial approach to marriage where the emphasis was placed on the preservation of the marital bond and sexual relations being one part of the matrimonial relationship. Although the case of Harvinder Kaur did not directly decide whether marital rape must be criminalised, its reasoning formed the basis for the larger debate as it repelled the notion that the principles of constitutional privacy and bodily autonomy precluded the State’s power to regulate the intimate aspects of marital relationships.
- Saroj Rani v Sudarshan Kumar Chadha(Supreme Court, 1984)
Under this case, the Supreme Court interpreted the validity of section 9 of the Hindu Marriage Act 1955, which deals with the remedy of restitution of conjugal rights if a spouse without reasonable excuse withdraws himself or herself from the society of the other. The case was triggered when, after obtaining a decree for the restitution of conjugal rights, the wife and the husband did not resume co-habitation, after which the husband filed a petition for divorce, arguing that there had been no restitution of conjugal life. During the appeal, not only was the constitutional validity of section 9 questioned but it was also compared with the T Sareetha v T Venkata Subbaiah case of the Andhra Pradesh High Court which held the section to be unconstitutional. The Supreme Court rejected the T Sareetha approach, while upholding the reasoning of the Delhi High Court in the Harvinder Kaur v Harmander Singh Choudhry case. The Court held that the restitution of conjugal rights was meant to bring estranged spouses together in order to preserve the marriage. It specifically reasoned that while sexual relations form an important part of a marital life, they are not its entirety and a decree for the restitution of conjugal rights does not amount to a legal obligation for sexual intercourse.
- Independent Thought v Union of India(Supreme Court, 2017)
The case Independent Thought v Union of India established a significant precedent regarding marital rape, specifically in cases concerning minor wives. Exception 2 to section 375 of the Indian Penal Code 1860 created a loophole in the law that allowed a husband to engage in sexual intercourse with his wife without being charged with rape if the wife was not under fifteen years of age. In other words, according to the marital rape exception, a man could not be convicted of raping his wife unless she was under the age of fifteen. However, according to the rest of the law, each girl under the age of eighteen was considered a child, and eighteen was the age of consent. The Court acknowledged that the marital rape exception distinguished between married and unmarried girls was completely irrational and did not consider the best interests of the children. The Court held that sexual intercourse with a wife below the age of eighteen was rape, thus removing the marital rape exemption for women under the age of eighteen. Nevertheless, the Court made it clear that its ruling applied only to minors and did not affect the existing law in cases concerning adult women. The case does not eliminate the marital rape exception due to the wording of the law. On one hand, the case removed the marital rape exception for minor wives, while on the other hand, the Court left the issue of whether marital rape of an adult wife should be considered rape to future discussion.
Conclusion:
As evident from the Indian legal position with respect to marital rape, there is an inherent contradiction in recognising the rights of a woman about her dignified status, her bodily autonomy, and her right to consent when in a marriage, yet failing to afford adequate protection to them. Regardless of judicial progress and legislative amendments, there still remains a marital rape exception under which any non-consensual sex acts by the husband do not amount to criminal activity. Marriage cannot be used as a license for non-consensual sex as the woman’s right to consent does not end upon marriage.
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Written by – Krittika Sengupta
REFFRENCES:
- Harvinder Kaur v Harmander Singh Choudhry AIR 1984 Del 66
- Independent Thought v Union of India (2017) 10 SCC 800
- Queen-Empress v Hari Mohan Maiti (1891) ILR 18 Cal 49
- Saroj Rani v Sudarshan Kumar Chadha (1984) 4 SCC 90
- T Sareetha v T Venkata Subbaiah AIR 1983 AP 356
- Constitution of India 1950, art 21
- Age of Consent Act 1891 (Act X of 1891)
- Bharatiya Nyaya Sanhita 2023 (Act 45 of 2023), s 63 and Exception 2
- Criminal Law (Amendment) Act 1925 (Act XXIX of 1925)
- Criminal Law (Amendment) Act 1983 (Act 43 of 1983)
- Criminal Law (Amendment) Act 2013 (Act 13 of 2013)
- Hindu Marriage Act 1955, s 9
- Indian Penal Code 1860, s 375 and Exception 2
- Committee on Amendments to Criminal Law (Justice J S Verma Committee), Report (23 January 2013)
- Parliamentary Standing Committee on Home Affairs, Criminal Law (Amendment) Bill 2012 (167th Report, Rajya Sabha, March 2013)
- Hale M, Historia Placitorum Coronae: The History of the Pleas of the Crown, vol 1 (first published 1736)
