Introduction
India’s law relating to exception to marital rape is back in the headlines, and for all the wrong reasons. The controversial Exception 2 to Section 375 of the Indian Penal Code, 1860 (‘IPC’) exempts a man from the rape of his own wife. Disappointingly, even the new Bharatiya Nyaya Sanhita, 2023 (“BNS”) failed to address this long-contested issue. Resultantly, this regressive provision, is still in force in around 30 odd countries such as Pakistan, Afghanistan, etc along with India, continues to mar India’s legal framework, which otherwise promises women dignity and protection of individual liberty.
A single judge bench of the Hon’ble Chhattisgarh High Court set free a man convicted of raping and engaging in unnatural sex with his wife, which led to her death in 2019. This case, which has met with much criticism and accusations of apathy, has again ignited the debate around marital rape exception. The criticism, though rightly founded, may be slightly misplaced, since there is not a lot the courts can do to serve justice, while the laws explicitly exempt husbands from rape of their wives.
Understanding the Dilemma
The marital rape exception is rooted in the assumption that marriage implies a woman’s blanket consent to all future sexual acts with her husband, undermining her bodily autonomy. Another theory in support of the exception suggests that a woman is the property of her father before the marriage and of her husband later, essentially meaning that a person can never commit a crime against his own property, ruling out the possibility of the offence of marital rape.
The 172nd Legislative Commission Report questioned the validity of the exception, arguing that while various forms of violence by husbands against wives are criminalised, marital rape should also be recognised as a statutory offence, however, the argument was rejected by the law commission, fearing that criminalising marital rape would weaken the institution of marriage. The primary reservation of the Government in India has revolved around the sanctity of marriages in India along with the issues of false cases, increased litigation and evidence-related issues.
The hope of a reform in this regard has been seen in observations of various High Courts. In Nimeshbhai Bharatbhai Desai vs State Of Gujarat the court acknowledged that marital rape is a significant issue that, regrettably, is not drawing much attention from the government, and the time is right for the legislature to step in and create suitable laws.In a split decision in RIT Foundation vs Union of India, Justice Rajiv Shakdher noted that the exemption was against Article 14 of the Indian Constitution.
The Chhattisgarh High Court Verdict
On February 10, the single-judge bench of the Chhattisgarh High Court acquitted a husband accused of engaging in unnatural sex with his wife under Section 377 of the IPC, which allegedly led to her death. The accused husband reportedly engaged in unnatural intercourse with the deceased wife against her will. An FIR was registered under Section 377 of the IPC, and the husband was subsequently arrested.
The Trial Court convicted the husband under Sections 377, 376, and 304 of the IPC, sentencing him to 10 years of rigorous imprisonment along with a fine of INR 3,000. This conviction was based on the deceased’s dying declaration and post-mortem findings, which indicated peritonitis and rectal perforation. The Executive Magistrate recorded that the deceased had mentioned forced unnatural intercourse, although this was omitted from the final declaration. During the appeal, one of the key issues before the Hon’ble High Court was whether offenses under Sections 376 and 377 of the IPC were applicable in the given circumstances, considering that the accused and the victim were married.
The Court observed that under Section 375 of the IPC, a husband cannot be charged with rape if his wife is above 15 years old, even in the absence of her consent. Since the legal definition of rape includes penetration of the vagina, urethra, or anus, the Court ruled that a husband’s act of anal intercourse with his wife does not require consent and, therefore, does not constitute an unnatural offense under Section 377 of the IPC. The Court referenced the Supreme Court’s ruling in Navtej Singh Johar v. Union of India (2018), which held that oral and anal sex are offenses only if they are non-consensual. However, since marital rape is exempt under Section 375, the Court concluded that any unnatural sex within marriage cannot be prosecuted under Section 377.
Judicial Reasoning and Its Flaws
The court based its decision largely on the marital exemption under Section 375 of the IPC and held that an offense under Section 377 could not be made out between a wife and husband in the view of this exemption. The judgment, however, did not contain proper reasoning and discussed largely the supposed repugnancy between Sections 375 and 377 IPC.
The court did not consider that Section 377 is a standalone offence with a separate rationale in law than that of Section 375. Firstly, the language used in Section 377 says that the offender may be “whoever,” which clearly shows its generality, regardless of any particular relationship. On the other hand, Section 375 only mentions that a “man” may be an offender and specifically excludes a husband. Secondly, whereas Section 375 defines the victim as a woman in a strict sense, Section 377 applies to any woman, man, or even an animal, underlining its general applicability.
Accordingly, Section 377 is an independent provision and not to be interpreted in light of Section 375 or the marital exemption for rape. The Hon’ble Gujarat High Court in Nimeshbhai Bharat Bhai (supra) acknowledged the fact that a wife can file a complaint against her husband under Section 377 for unnatural sex as carnal penetration would be considered a crime. The approach of the court operates to negate the protection under Section 377 for non-consensual unnatural sex within marriage and goes against the rule that all persons, married or unmarried, have the right to bodily autonomy and protection from sexual violence.
This reading not only overturns the legislative intent behind Section 377 but also nullifies the Supreme Court’s rationale in Navtej Singh Johar, to the effect that unnatural intercourse would constitute an offense when it was against the will of the consenting parties. The judgment thus brings serious doubts regarding the judiciary’s understanding of sexual offenses as well as the protection of spousal rights. To add to the woes, the judgment broadens the extent of marital exemption. Essentially, by its judgment, the court proceeded to hold that any form of sexual intercourse; whether with or without consent, natural or unnatural, between husband and wife would be exempted and would not amount to any sexual offense, in view of a plain language exemption in a completely different section, thereby conferring upon it an excessively wide interpretation.
Conclusion
Judicial activism can only get us so far without adequate involvement and conversation of the legislation. The apprehensions of the Government, while not entirely irrational, come at a much higher cost- the safety and autonomy of a woman over her body in her own household. Judgements such as this one act as a constant reminder of how far we are yet to go to provide woman with the basic human right of their bodily autonomy, enshrined in our Constitution, specifically Article 14 and 21, which ensure equality and right to life with dignity to individuals.
With more than 100 countries, including Britain, outlawing this exception, it is about time that India thinks over and does away with the draconian law of marital rape exemption. There is an urgent need for legislation to come up with measures to balance the interests of the society while also ensuring woman are not victim of sexual offence in the guise of “institution of marriage” that they are so desperate to protect.
This blog is written by Harshit Sharma and Prashant Babbar, 3rd Year Students, Rajiv Gandhi National University of Law, Punjab
