Explained: Why Marital Rape Is Not a Crime in India (Yet)

India is one of the 150 countries in the world where marital rape is not recognised by law. Why? Read on.

Do you know what links an English judge, who died in 1676 and once allowed the execution of two women for witchcraft, the Delhi government of today, a Parliamentary Standing Committee from 10 years ago, and every wife-beater throughout history?

They all believe in this very specific form of magic – where a man and a woman walk around a fire a bunch of times, go for some other antiquated ceremony, or just sign a specific piece of paper. And once that is done, poof, the woman has now agreed to have sex with the man whenever he wants.

The Delhi High Court on Wednesday, 11 May, saw a split decision on the constitutionality of the marital rape exception.

Justice Rajiv Shakdher held that Exception 2 to Section 375 (which prescribes the marital rape exception) is "violative of Articles 14, 15, 21 of the Constitution and hence must be struck down."

However, Justice C Hari Shankar, the other judge on the division bench, disagreed and held that there were no grounds for the court to strike the exception down, which was justified under Article 14, because there was an intelligible differentia created by marriage.

This exception has been part of the IPC since its inception in 1860, having been justified by Lord Macaulay in his original draft of the criminal law in 1839 as an exception necessary to protect the "conjugal rights" of a husband.

This, in turn, was based on the concept of 'coverture' explained by the above-mentioned English judge from the 1600s, Sir Matthew Hale – who said that upon marriage, a woman surrendered her agency to her husband, including when it came to consent for sexual intercourse.

After years and years of Parliament actively refusing to get rid of this archaic, misogynistic law, the Delhi High Court might – might – just hold that it's unconstitutional and strike it down.

To put things into perspective, one in every three women in India, between the ages of 15 and 49, stated that they had experienced some form of violence from their spouses, as per the latest NHFS data. Nearly 80 percent of women reported their current husband as perpetrators and 9 percent reported their former husbands as perpetrators.

What Does This 'Exception' Mean?

Exception 2 to Section 375 of the IPC – the section that defines what the offence of rape is – says:

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

Basically, it means that if you're a married man, and you force your wife to have sex with you without her consent, no matter what you do to make this happen, whether physical violence, or slipping her a roofie, or threatening to murder her parents, she can't go to the police and file a complaint for the offence of rape.

The rape laws in India have undergone several changes since pre-independence. But the exception to marital rape has always remained.

Just five years ago, in 2017, the Supreme Court held that the section should read "the wife not being under eighteen years of age." But this judgment was limited to making sure the IPC was in line with the age of consent, which is 18, and hence did not address the larger problem of the marital rape exception for adults.

Couldn't Parliament Just Get Rid of the Marital Rape Exception?

In 2000, the Law Commission of India, while considering several proposals to reform India's laws on sexual violence, had rejected any need to remove the marital rape exception, saying, "We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship."

The Justice JS Verma Committee, tasked with proposing amendments to India's rape laws after the horrifying Nirbhaya gangrape and murder, had included the deletion of the marital rape exception as one of its recommendations. However, the amendment was not accepted by a parliamentary panel in 2013.

In 2015, when the government was questioned in Parliament about marital rape, then Minister of State for Home Affairs Haribhai Parathibhai Chaudhary responded: "Marital rape cannot be applied in the country since marriage was treated as a sacrament or sacred in the Indian society."

In 2017, Union MoS for Home Affairs Krishna Raj once again said the central government was against removing the exception, citing the 2013 a parliamentary panel's views on the issue:

"The entire family system will be under great stress if marital rape is brought under the law."

By constantly and vehemently refusing to criminalise marital rape, lawmakers have implicitly reiterated that it is a wife's duty to have sex with her husband, and that the institution of marriage is basically a signing away of a woman's right to consent.

What Is the Case?

A case that began with a petition from the RIT Foundation in 2015 has reached the stage of final arguments at the high court, which has heard from those who say this petition violates Articles 14 and 21 of the Constitution of India, those who think getting rid of it would threaten the 'institution of marriage', and from two court-appointed experts, both of whom say it needs to go.

Now, there are some things in life about which there really can't be a both-sides debate, because the problems with those things are just too obvious.

The marital rape exception is – to anyone who really thinks about the issues at play – one of those things. Yes, there may be some need to think about certain safeguards to ensure its removal won't lead to misuse (which isn't even necessarily going to be a problem).

But beyond that, is it really possible to defend a legal provision which basically says it's okay for a husband to force himself on his wife?

Justice DY Chandrachud had noted in his judgment on Section 377 that in fact, that the courts can't hide behind old formalistic tests to avoid seeing how a law can be discriminatory and oppressive and treat people differently.

This has to be considered even when considering a violation of Article 14 – that guarantees equal treatment of laws – which has traditionally been assessed by a strict two-pronged test that looked only at the legislature's intent.

That the marital rape exception violates the fundamental rights of married women is manifestly clear.

The exception treats them and women who are not married to a particular man differently, even for the same act of non-consensual sexual intercourse. The only difference between them is the marital relationship – there is no rational connection between this and what the offence of rape is supposed to be about. Hence, Article 14 is violated.

Are There Any Reasons Why the High Court Can't Strike Down the Exception?

Unfortunately, even though on substance it's clear that this marital rape exception is all kinds of awful, that doesn't necessarily mean the Delhi High Court, or even for that matter the Supreme Court, can strike it down, technically speaking.

Supporters of the marital rape exception during the hearings in the high court – including the Delhi government – have raised the following objections on procedural grounds to the court getting rid of the exception:

1. The Legislature gets to decide policy issues, and all laws have a presumption of constitutionality. So if they want to say that a marital relationship is sufficient grounds to treat the rape of a woman by a particular man differently, the courts shouldn't be interfering. This is better left to Parliament to decide whenever it does, in its wisdom.

2. Striking down the exception would create a new offence, ie rape by a husband of his wife, which the courts can't do, and so it can't be struck down. Or the court would have to strike down the whole section, which would obviously not be possible.

The first argument doesn't really fly, legally speaking, since pre-Constitution laws like the IPC do not get the benefit of the presumption of constitutionality, as the Supreme Court has pointed out in recent times. Furthermore, regardless of whether the legislature is planning to review a legal provision or not, the constitutional courts still have the jurisdiction to declare a law unconstitutional if it violates the fundamental rights.

As for the second, now that's the big one to deal with, especially since one of the judges has indicated this is something he's concerned about.

But removing the exception isn't creation of a new offence, it's merely the removal of the immunity granted to one class of rapists as senior advocate Rebecca John, who had been appointed as amicus curiae by the high court, explained.

It would require a hyper-technical reading of the plain language of Section 375 to argue that the offence of rape is not when a man performs non-consensual sexual acts on a woman, and the exception is, well, an exception to this general rule.

The removal of this kind of immunity is not the creation of a new offence, as the House of Lords noted in its 1991 decision getting rid of the marital rape exception in England and Wales (which was worded differently there – it was, in fact, baked into the actual language of the offence there and not written down as an exception.

When the Supreme Court of India in the Independent Thought judgment in 2017 held that it can't apply if the wife is 15-18 years of age, they specifically said this was not the creation of a new offence.

That this hyper-technical argument is the best shot at retaining the marital rape exception should make its defenders really ask some uncomfortable questions about themselves. And it really is the only real shot, as when attempts are made to justify the exception on merits, these are the arguments that the defenders of it were left with:

• Taking away the exception is a threat to the institution of marriage. (Because yes, that's what marriage is supposed to be, a legal sanction for a man to rape his wife)

• It's difficult to ascertain consent when people are living together, so it can then be misused by a woman to claim rape by her husband. (Because yes, there's no way to build some safeguards to prevent genuine misuse, and because so many women are just going to want to blow up their marriages by making false claims of rape)