Marital Rape: Could we all have got it wrong?

The Delhi High Court recently delivered a split verdict on the legality of marital rape. The constitutional validity of the Marital Rape Exception (MRE) embodied in Section 375 of the Indian Penal Code, 1860 (IPC) was under challenge before the Court, in the matter of RIT Foundation & others v. Union of India.

Justice Rajiv Shakdher held MRE to be unconstitutional and violative of Article 14, 15, 19(1)(a) and 21 of the Constitution, and upheld a woman’s right to her bodily autonomy. Justice Hari Shankar, on the other hand, was of the view that there is an intelligible differentia between the treatment of sex within a surviving and subsisting marriage, as opposed to that between unmarried persons, and that it cannot be said that non-consensual sex between a married couple is rape.

Both judges, however, concurred that the matter raises a substantial question of law and requires further consideration by the Supreme Court.

The issue of bodily autonomy of women is topical and important. It is at the heels of being called into question even in the United States, as the recently leaked draft opinion of Justice Alito in the matter of Dobbs v. Jackson Women's Health Organization appears to suggest. Therefore, the Indian Supreme Court’s decision will be of utmost importance.

Justices Shakdher and Shankar also cite portions of the legislative history of Section 375 of the IPC and MRE. In this context, we thought we would dig deeper into its legislative history, to examine if the statute intended to legitimize marital rape, as it has come to be commonly understood.

It cannot be denied that the majority of the material, both in terms of judicial precedent as well as legislative debates, views MRE as legalizing marital rape. But some of our research was pleasantly surprising, even for us. We have both long believed that Section 375 of the IPC does not criminalize marital rape, and in fact, that the MRE legitimizes it. However, a closer scrutiny of the legislative history of MRE appears to indicate that in fact, MRE was perhaps always intended to be only a clarificatory provision, and nothing more. Husbands, like any other men, continued to be bound by the shackles of “consent” (now embodied in Explanation 2). There is nothing in MRE to suggest that “rape” within married adults is exempted.

It is not disputed that MRE is judicially and commonly understood as the provision legitimising rape within a marriage. However, a bare perusal of the statute, and more particularly seen in the context of the categorical rejection of both attempts to explicitly permit rape of a wife by the legislature, point to judicial precedent being at odds with the plain language of the statute.

Definition of Rape and MRE

Section 375 of the IPC defines Rape. Exception 2 of this Section, which is the MRE provision, reads:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

Fifteen years has been raised to eighteen years in 2017, but more about that later.

While the age of 15 years appears to shock one’s conscience, it is important to see it in its correct historical context. The MRE age has a causal link to two other prescribed ages - to the sixth clause of Section 375 (commonly known as the statutory rape provision), and to the minimum age of marriage prescribed by the Child Marriage Restraint Act, 1929. The MRE age has generally been lower than the age prescribed by both the statutory rape provision and the marriage age prescribed by the 1929 Act.

The ages have been carefully mapped in a chart at page 8 of the 84th Law Commission Report, 1980. That being the case, the inescapable conclusion is that the exception was carved out for the protection of husbands from prosecution, in instances of intimacy with a minor wife, since marriage with a girl child below the marriageable age prescribed by the 1929 Act, was albeit prohibited, not void, as a matter of personal law.

MRE was also the amnesty provision protecting husbands from getting caught within the mischief of the statutory rape clause. In fact, in the counter affidavit filed on behalf of the Union of India before the Supreme Court in the matter of Independent Thought v. Union of India, the government stated that the age of 15 years had been kept to give protection to the husband and the wife against criminalizing sexual activity between them.

The journey of criminalizing rape, in India, began with Clause 359 of the draft IPC. This was prior to 1860. Clause 359 provided for a definition for rape. It also had a MRE, which categorically recommended the legitimisation of rape in a marriage. The clause read:

“Sexual intercourse by a man with his own wife is in no case rape”.

Justice Shakdher rightly observes that under Clause 359,

“the husband had an unhindered right to have sex with his wife whether or not she consented to it."

What is important, however, is that Clause 359 did not pass muster on further scrutiny. The text of Clause 359 was not codified. And the IPC in 1860 promulgated a very different language, which read - “Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape”. Notice that the words “in no case” did not find their way into the IPC.

In order to understand the true meaning of the 1860 MRE provision, one need only look to the explanation provided by Indian Law Commissioners:

“There may however be cases in which the check of the law may be necessary to restrain men from taking advantage of their marital right prematurely. To meet such cases it may be advisable to exclude from the exception cases in which the wife is under nine years of age. Instances of abuse by the husband in such cases will then fall under the 5th description of rape.”

The 1860 MRE provision continued in Section 375 despite amendments carried out in 1983 and 2013. However, the MRE age kept enhancing. Interestingly, despite the MRE age enhancement, it continued to be lower than the statutory rape provision and the legal marriage age.

There is one more instance which almost gave unequivocal statutory recognition to marital rape. On June 2, 1971, an amendment to Section 375 was proposed by the 42nd Law Commission Report. The proposed change was to the opening sentence of Section 375, and which read - “375. Rape – A man is said to commit rape who has sexual intercourse with a woman, other than his wife – (a) Against her will; or (b) Without her consent; or (c) With her consent when it has been obtained by putting her in fear of death or of hurt, either to herself or to anyone else present at the place; or (d) With her consent, knowing that it is given in the belief that he is her husband.”

Fortunately, this amendment to Section 375 was never carried out, and the MRE continued unamended.

MRE is redundant and it is also unconstitutional

In 2017, in the matter of Independent Thought, the Supreme Court increased the MRE age from 15 to 18, bringing it in line with the marriageable age of a woman. While the Supreme Court stated that it was not dealing with the issue of marital rape, by the factum of equalizing MRE and marriageable age, the Supreme Court rendered MRE redundant.

De hors its redundancy, there can be no doubt that marital rape takes away a woman’s autonomy and agency, and a law that legitimizes such a notion deserves to be struck down on unconstitutionality. As Justice Shakdher correctly says, marital rape violates the guarantee of equality under Article 14 and dignity under Article 21. It also violates the guarantee of privacy embodied in Article 21, upheld by a nine-judge bench in the matter of KS Puttaswamy v. Union of India. The right of a woman’s bodily autonomy is firmly rooted in the doctrine of privacy (Roe v. Wade).

We are in respectful disagreement with Justice Hari Shankar’s observations to the effect that non-consensual sex in a marital relationship does not amount to rape. Seeing it in that context would amount to reading words into MRE, such as “non-consensual” and “forcible”, which simply do not exist. In fact, MRE speaks of “sexual intercourse” and “sexual acts”. Sex is between two consenting adults, capable of giving consent. It is an act of intimacy. An act without consent is merely an act of violence or passive submission, in other words, rape.

Consider a case of violent marital rape - the wife’s only option will be to complain about bodily injury or grievous hurt (along with other quasi criminal and civil remedies). It is confounding that she cannot be permitted to lodge a criminal complaint about the primary offence, but can do so for the collateral and ancillary offences!

This article would not be complete without addressing the elephant in the room – the issue of evidence, or the perceived lack thereof.

First, Section 375 provides for two broad categories of rape – rape simpliciter and aggravated rape. In the latter, the burden of proof shifts upon the accused. Marital rape will fall within the former category, where the burden of proof remains with the prosecutrix to discharge, and beyond a reasonable doubt. The odds are already pegged against the victim.

Secondly, in India, in the absence of corroborative evidence, a conviction can be made on the basis of examination of the prosecutrix alone, provided she is a stellar witness. There is no reason to assume that a wife’s testimony will not require her to meet that standard.

Lastly, deciding what needs to be a crime cannot be assessed by what evidence can or cannot be brought to court. This would amount to putting the cart before the horse. As Justice Shakdher rightly quotes,

“...proof of rape in marriage will, in many situations, be difficult, but that is no reason for saying that a charge of rape…and while the parties are still cohabiting, is not relevant for trial." [Working Paper No.116 of the UK Law Commission (1991)]

Meenakshi Arora is a Senior Advocate at the Supreme Court of India. Payal Chawla is the founder of JUSCONTRACTUS, India’s first and only all-women law firm.