Autonomy Of The Second Sex

'A husband's licentious disposition disregarding the autonomy of the wife is a marital rape' is the classic observation made by a Division Bench of the High Court of Kerala in a divorce proceeding where the court was pleased to grant a divorce to the wife ( XXX v. XXX, Mat. Appel no. 151 of 2015 dated 30.07.2021)

The court continued further "…..albeit such conduct cannot be penalized as it falls in the frame of physical and mental cruelty ..……marital rape is alien to our penal jurisprudence"

The classic statement of the law on the 'autonomy of the body of the woman' in a marital situation is welcomed by society at large. Indian law has evolved and is moving towards accepting marital rape.

The latter portion of the comment of the High court that Marital Rape is alien to the Indian jurisprudence is being analysed here.

Recent Change in Indian Penal Law:

Section 376 B of the Indian penal Code was added in 2013 through an amendment, an offence that was previously dealt under Section 376A of IPC. The law that stood before the amendment was 376A which came into force on December 25, 1983. Let us compare them to see what the change is.

Section 376A the Old Code reads- Whoever has sexual intercourse with his own wife, who is living separately from him under a decree of separation or under any custom or usage without her consent shall be punished with im­prisonment of either description for a term which may extend to two years and shall also be liable to fine.

After the amendment dated February 3, 2013, it stands as Section 376B, which reads: Whoever has sexual intercourse with his own wife, who is living separately whether under a decree of separation or "otherwise" without her consent shall be punished with im­prisonment of either description for a term which shall not be less than two years, but which may extend to seven years, and shall also be liable to fine.

Amendment in the Criminal Procedure Code-

Along with the introduction of S. 376B,  Section 198B was also incorporated in the Code of Criminal Procedure, 1973, which mandates that no court shall take cognizance for an offence of marital rape except upon prima facie satisfaction of the facts which constitute the offence upon a complaint made by the wife. A combined reading of these two provisions shows that marital rape is recognized in Indian law from 2013. Now let us analyze the change in the law.

The law, as it stood before the amendment, had a mandate that a complaint is possible only when the parties were living either on a decree of separation or under any custom or usage. The words custom or usage in the case are custom or usage 'having a color of law'. The shift of the law in 2013 was by deleting those words and substituting the same with the words 'or otherwise.

Living separately also can be under the same roof if they are living separately from board and bed.

The Historical background

The conventional approach of not recognizing a marital rape, perhaps, dates back to 1736 from a pronouncement by Sir Mathew Hale that said.
"The husband cannot be guilty of rape committed by himself, upon his lawful wife, for by the mutual matrimonial consent and contract, the wife had given herself up in this kind to her husband, which she cannot retract ( History of the Pleas of the Crown,1736). In England, the privilege of the wife has been taken away by the House of Lord in 1991 through the classic observation made by Lord Keith "Marriage in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband" (R v R, 1991 (4) All England Reporter 481)

The European Commission for Human rights endorsed a commission regarding marital rape as "Rapists remains a rapist regardless of his relationship with the victim". Canada repelled the privilege of the husband in 1983. South Africa made it an offence in 1993 and penalized it in 2007. A 2010 study done in South Africa shows that 18.8% of women were subjected to serious marital rape.

In R v. L, 1991 HCA 48, the Australian High Court, speaking through Justice Brennan, declared that "the common law fiction has always been offensive to human dignity and incompatible with the legal status of the spouse "

Hence, the changes in this branch of law occurring through centuries and especially from the early 1980s after the infamous Sailor's case raised awareness all over the world in the legal fraternity on the women's right to autonomy of her body and physical integrity regardless of marriage or other domestic relationships.

The UN Committee for Elimination of Discrimination Against Woman, recognized this aspect of women's autonomy and now emphasizes on the importance of sensitizing the same  through the Judiciary, law enforcement agencies and medical personnel involving in treating the victims.

It is on the basis of these considerations, that in 2013 the Justice Verma Committee recommended that the exception of marital rape be removed.

The Commission recommended the following :

1. A marital or other relationship between the preparator or victim is not a valid defence against the crimes of rape or sexual violation.
2. The relationship between the parties is not relevant to the inquiry into whether the complainant consented to the sexual activity.
3. That marital or intimate relationship need not be regarded as a mitigating factor justifying a lower sentence for rape.

Whilst acting on the Justice Verma Committee' recommendations, the change in the law was made by removing the words "usage or custom" and replacing them with the words "otherwise". Though the change is seemingly slight, the impact of the same is a paradigm shift towards recognizing marital rape.

The prison sentence also has been increased from two years to seven years with a minimum punishment of two years. The normal sentence for rape before the 2013 amendment was seven years. So, it is clear that the third recommendation of the Verma commission was almost fully accepted.

Though we have not completely taken away the husband's privilege, the substitution caused a strong shift in Indian law with a step towards the autonomy of the female body.

But at the same time, the Indian experience of the large-scale misuse of the Dowry law demands (Section 498A of IPC) was a serious concern in the parliament. That is why Section 198B was incorporated in the CrPC, where it is mandated that the court should be prima facie satisfied that an offence of marital rape is committed. It also mandates that the complaint should come from the wife herself through a written complaint.

Let the Kerala High Courts' dictum be an eye-opener to society, forcing it to recognize the honor and dignity of women and the autonomy of an individual regardless of gender.

Conclusion:
Similar to many other law evolving jurisdictions, India is also moving towards accepting Marital Rape as an offence and prosecution and punishment is recognized by Indian law.

Author is a practicing lawyer at Kerala High Court