Time's Up For Hale's Ghost To Exit From India

Albeit the judicial rationale behind could be a strict adherence to the law as it is, including on the evidentiary value of dying declaration, the repugnancy between Section 375 and 377, and the applicability of Section 304; to any sensible mind that believes in upholding the fundamental rights of a woman as a human being, the verdict reeks of patriarchy, misogyny and the absolute contempt to a married woman's agency. One could say, this is another aftermath of the Delhi High Court's split verdict in Farhan vs State and Anr (2022/DHC/001825 W.P.(C)No.284/2015), wherein the Division Bench led by JJs. Rajiv Shakdher and C. Hari Shankar heard the case to strike down MRE. Unfortunately, while Justice Shakdher found Exception 2 to Section 375 of IPC as violative of Articles 14,15, 19 and 21 of the Constitution of India, Justice Hari Shankar opined otherwise, and held the existence of MRE as valid within the contours of constitutional law.

It is not to say that this writer believes the sole onus to uphold women's dignity lies with the higher judiciary of this country. Nor it can be expected to fill in the legislative lacunae if any existing, for the same will be a breach of the Doctrine of Separation of Power. However, one can also not overlook the fact that where there is prima facie a blatant violation of the fundamental human rights of an individual, the judicial system cannot remain an idle spectator. And regarding MRE, the violation is on multiple fronts. To begin with MRE violates Article 14 of the Indian Constitution which guarantees equality before law and equal protection of law to all persons within the territory of India. Yes, the same Article allows scope for intelligible differentia, but the same is valid only when there is a rational nexus between the differntia and the object sought to be achieved (Navtej Singh Johar vs UoI 2018 INSC 790) In the context of MRE, the classification of women into married and unmarried for the prosecution of the offence of rape committed to them has absolutely no nexus whatsoever with the legislative intentions surrounding the legal protection of women. When any and every woman, including a sex worker or prostitute, outside the purview of marital relationship has a legal remedy to rape and forceful sexual atrocities committed against her, how does the mare tag of being married can invisibilize the criminality of the perpetrator husband?

The discrimination faced by a married Indian woman when subjected to non-consensual sexual acts, including marital rape, by her husband also goes against the spirit of Article 15 of the Indian Constitution. While Article 15 (1) prohibits any kind of discrimination on the ground of sex (among other grounds), Article 15 (3) makes it explicit that the State can bring in positive discrimination for safeguarding the interests of women and children. A combined perusal of these two provisions would expose the anomaly in the MRE, which not only perpetuates discrimination within the same sex as married and unmarried women, but also against essence of legislative intentions in bringing forward women- centric laws.

Equally troublesome is the fact that the existence of MRE mars the right to freedom of a woman to express her sexual agency, as guaranteed under Article 19 of the Constitution of India. This right as contemplated in its wider and contemporary connotations, and of course subjected to the reasonable restrictions placed under Article 19 (2), must include the right to say NO to forceful sexual advances and violences within the realm of marriage. Or to put it blunt, what exactly at stake here is the 'consent' of a woman, which intrinsically is linked to her physical and mental autonomy. There can't be anything more ironic than the fact that the law- including Section 375 and 376 IPC- which is meant to protect the sexual and bodily integrity of the women, itself hides in its womb the dreadful ghost of Lord Hale.

Lastly, in a country where the Right to privacy of an individual is a declared fundamental right under Article 21, (vide K.S. Puttaswamy v. Union of India, 2017 INSC 801) to subject half of its population with the constant threat of bodily violation or even a resultant death by their lawful partner is abominable and against all the human rights covenants as they exist today. The right to life and liberty, including the right to privacy and autonomy cannot be accorded an inferior status in comparison to the necessity of existence of the institution of marriage. For, personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in (Anuj Garg v. Hotel Association of India 2007 INSC 1242, National Legal Services Authority (NALSA) v Union of India 2014 INSC 275).

It is also pertinent to note that the National Family Health Survey of 2015-16 shows an alarming proportion, i.e. 83% of the women of age group 15-49 having experienced sexual violence from their current husbands. Even out of these 99% of cases go unreported. Read this with the fact of conventional notions of the institution of marriage undergoing tremendous changes, no constitutional democracy should take the risk of letting the Damocle's sword of marital rape as an unpunishable offence, hung over its women. The Honorable Supreme Court in Independent Thought v. Union of India (2017 INSC 1030) was prudent enough to criminalize marital rape committed to children below the age of 18 years old, as it was incongruous with the spirit of POCSO Act. One cannot hope but demand the same judiciousness from the Lordships in the boiling issue of MRE which is pending final decision before the Honourable Apex Court. For, the necessity to criminalize marital rape and bringing the perpetrator/ accused husband before law should not be held hostage to the archaic notions of morality, outdated perceptions about a woman's bodily autonomy and most importantly to the shield of patriarchy that weighs over her fundamental rights.

The author is an Advocate practicing in Kerala , views are personal.