Court calls out archaic marital rape laws, now it’s time for lawmakers to hear the voices of silence

In a recent landmark order, Karnataka High Court allowed framing of charge against a husband for raping his wife. It has categorically observed, “…institution of marriage does not confer, cannot confer and in my considered view, should not be construed to confer any special male privilege or a licence for unleashing of a brutal beast. If it is punishable to a man, it should be punishable to a man albeit, the man being a husband.”

This marks a welcome and strong departure against the exception of marital rape granting immunity to the husband despite raping his wife. Notably, the Karnataka HC has maintained that it has not ruled on the constitutionality of the exception of marital rape in the IPC. Be that as it may, allowing trial courts to frame charges itself opens the possibility of emancipation of the wife in a marital relationship.

Historical background

The Indian version of rape law is frequently alleged to be archaic, inhumane, and unable to keep pace with the changing socio-legal mores of the 21^st-century society. One of the major reasons this allegation is the second exception to Section 375 of the IPC which makes sexual assault within marriage legally not considered and punishable as ‘rape’.

The exception finds its genesis in the penal Code drafted by Lord Macaulay in 1837 which went on to form the basis of the IPC. Since then, the exception has figured in the IPC since its enactment by the British in 1860. The logic of this exception treated marital rape as a ‘property crime’ and was premised on the Victorian understanding of marriage as a contract and women as mere voiceless chattels of their husbands in law.

The march of law 

Nevertheless, a constitutional democracy like India, founded as it is on the dignitarian discourse of guaranteed fundamental rights as enshrined in Articles 14, 19, and 21, now affords personal liberty, bodily integrity, and sexual autonomy to men and women on an equal footing. In Joseph Shine v Union of India (2018) the Supreme Court of India while striking down the criminal prohibition upon adultery, stated that treating a woman as chattel discriminates against women and denies them the promise and guarantee of equality under the constitution. It was also ruled that spouses do not lose their autonomy under marriage and retain individual liberty.

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There have previously been vociferous calls for removal of the exception by 42^nd and 172^nd reports of the Law Commission of India. Thereafter, it was only after the tragic Nirbhaya incident that the Justice JS Verma Committee of the Union government recommended removal of the exception stating that immunity to the husband on grounds of marital relationship between the perpetrator and the victim is not a valid defence against the crime of rape. However, a setback to the marital rape debate came by way of the 167th report of the Parliament Standing Committee on Home Affairs (2013) which refused to remove the marital rape exception on the ground that the entire family system will suffer and this can result in more injustice.

Popular concerns against the criminalisation

More importantly, marital rape has been criminalised in around 150 countries. However, India still takes a conservative stand on the issue. Legislature has often highlighted grounds like the sanctity of marriage which stands to be threatened if marital rape is allowed. Concerns have also been expressed over supposed false criminal charges against the husband.

At this stage, it is pertinent to understand marriage. Across the religion and understanding of human relationships, marriage is one of the key human relationships signifying the union of two people. This relationship is founded upon equality, love, trust, and other such virtues where force has no place. If force and immunity are needed to protect the husband’s forced sexual acts on wife, the institution of marriage is then definitely misunderstood and poses a social threat.

There exists adequate protection under the law to protect husbands against fake complaints. Proceeding under the presumption that the wife would file fake cases is gravely erroneous and severely misrepresents the wife in a marital relationship. It downgrades the women to chattel and subservient in marriage.

Way forward

As we march into the 75^th year of Independence, we have to reflect as a nation to bring equality to each citizen. While there is no denying that exception of marital rape is colonial wrongdoing, reflection is needed to understand what is taking us so long to undo this in our independent nation.

The Delhi High Court is already seized of the issue and has reserved judgement on it. The Karnataka High Court has rightly invoked the role of the legislature here: “A brutal act of sexual assault on wife, against her consent, albeit by the husband, cannot be termed to be rape… Such acts of husband scar the soul of the wives. It is, therefore, imperative for lawmakers to now hear the voices of silence.”

The author is a student at NLSIU Bangalore and International Editor, Cambridge Law Review. Views expressed are personal.

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Snehil Kunwar Singh