Marital Rape Is Not A Husband's Privilege But A Violent Act And An Injustice That Must Be Criminalized: Gujarat HC [Read Judgment]

Gujarat High Court has recently observed that the total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.

Justice Pardiwala observed:

“A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape.  It allows the men and women to believe that wife rape is acceptable.  Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape.  Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed.  The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.”

In the instant case, the court had to resolve a marital dispute involving a doctor couple.  The High Court held that a husband accused of outraging the modesty of his wife can be prosecuted under Section 354, Indian Penal Code. The high court ordered the Investigating Officer to file an appropriate report before the court concerned to add section 354 of the IPC in the FIR.  The high court, however, quashed the FIR so far as the offence punishable under sections 376 and 377 of the IPC.

Under Section 354, a person may be held guilty of outraging the modesty of any woman including the one who is his wife.  If the husband expresses his affection towards his wife in public in an unkind manner such conduct will amount to an indecent behavior, be against public morality and amount to an outrage under section 354.  Highly personal acts of love and affection by the husband which may or may not be liked by the wife, if done in public, may go against public morality and fall under section 354 as all its essential ingredients are present in such a situation, the high court judgment, written by Justice J.D.Pardiwala, held.

Such personal acts done by the husband as are not acceptable to the wife even in private and also not approved by society, should also fall under the scope of section 354; today, no woman or society would approve of perverted sexual acts as being a legitimate part of the spousal relation, the high court held.

The earlier interpretation in Soka v Emperor (AIR 1933 Cal.142) that the protection of the provision is available to women who are old enough to feel the sense of modesty and whose sense of modesty is sufficiently developed, is no longer acceptable, the high court held.

Modesty is considered to be an attribute of every female since her birth and an outrage against a wife will be punishable irrespective of the fact that she is of a tender age or developed enough understanding so as to appreciate the nature of the act, or to realise that it is offensive to her senses.  Women have modesty irrespective of their age and understanding of it.   Modesty is an inherent characteristic of womanhood independent of any individual’s personality, the high court held.

In Major Singh, Supreme Court confined ‘modesty’ to sex as it observed:

“When any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that act must fall within the mischief of this section.”  Bachawat J. pointed out: “The essence of a woman’s modesty is her sex.  The modesty of an adult female is writ large on her body.  Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty capable of being outraged.”

Justice Pardiwala observed:

“Anything done by the husband which is suggestive of sex amounts to an outrage.  Kissing violently in public, raising her skirt before one’s own or the wife’s relatives or taking off her clothes and stripping her naked may all amount to an outrage under section 354.  Acts which are indecent, unfair, unkind, unreasonable and do not conform to approved social standards would be naturally deemed outrageous to the modesty of a woman.”  He added:

“If a person takes indecent liberties with his wife in public he will be as much punishable as if he had outraged the modesty of another woman.  But in case the wife is below 18 years of age, then irrespective of the fact that the husband and wife are alone or in public, any assault or use of force against her may amount to an outrage.  If they are alone, the husband may be held guilty of outraging the modesty of his wife, if he does unkind, cruel or perverted sexual acts to her.   The question whether a person can be held guilty of outraging the modesty of his wife must be answered in the affirmative, and section 354 should be equally applicable to a person who commits an assault or uses criminal force against his own wife”, the high court reasoned.

Marital rape is illegal in 50 American states, three Australian states, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland, and Czechoslovakia.   It was declared illegal and a criminal offence in 2006 in Nepal.

The judgment is likely to have a bearing in the pending case before the Delhi high court, (RIT Foundation v Union of India), which is being heard by the bench of the Acting Chief Justice Gita Mittal and Justice C Hari  Shankar.  The petitioners have challenged the constitutionality of the  IPC’s exemption to marital rape under Section 375.  The next hearing of the case is on April 16.

The exception to marital rape was read down as inapplicable to minor wives by the Supreme Court last year in Independent Thought v Union of India.

The Court has summarized the principles as follows;

1. The husband cannot be prosecuted for the offence of rape punishable under section 376 of the IPC at the instance of his wife as the marital rape is not covered under section 375 of the IPC. The husband cannot be prosecuted for the offence of rape at the instance of his wife in view of Exception-II in section 375 of the IPC, which provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.


2. A wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPC. Section 377 IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Consent is not a determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under section 377 of the IPC.


3. Except the sexual perversions of sodomy, buggery and bestiallity, all other sexual perversions, would not fall within the sweep of section 377 IPC.


4. More than a prima facie is made out having regard to the nature of the allegations so far as the offence under section 498A of the IPC is concerned.


5. As discussed above, a prima facie case to proceed against the accused-husband for outraging the modesty of his wife could also be said to have been made out. Although section 354 is not one of the offences in the FIR, yet I am of the view that the investigation in this direction is necessary.


6. The exemption given to marital rape, as Justice Verma noted, “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.


7. Way back in the 1800s, almost around 125 years back, there was a situation that brought forth to the law makers. A girl aged 11 years was brutally raped by her 35 year old husband. The then colonial government proposed to amend the age of consent for a girl from 10 to 12 years, yet, this idea was criticized at large but only after much acrimony and argument, the same was amended in 1891. In the words of Dr. B.R. Ambedkar, “realizing depth of the degradation to which the so-called leaders of the peoples had fallen.... any sane man, could any man, with a sense of shame, oppose so simple a measure? But it was opposed...” Dr. B.R. Ambedkar referred to the idea of necessity in the law that has been needed since then. I wonder how Dr. B.R. Ambedkar would have seen the present day scenario when no one is willing to even discuss to reform the criminalization of marital rape. A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed. The Husbands may then begin to recognize that marital rape is wrong. Recognition coupled with the criminal punishment should deter the husbands from raping their wives. Women should not have to tolerate rape and violence in the marriage. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized.