Navtej Johar Case: Depriving Married Women Of The Remedy Under Sec. 377

Out of the fifty-two countries that recognize marital rape as a crime, India is not one. The Indian laws do not see a husband as having the potential to violate the sexual autonomy of his wife.

The judgment of Joseph Shine v. UOI which upheld the sexual autonomy of a married women seems to have no influence on the Indian legislatures as they still believe that the Indian society is not ready for criminalization of marital rape and consider that even the allegations of it would damage the sanctity of marriage. Currently, the Indian Judiciary is dealing with the issue of marital rape as a ground for divorce; previously it had refused to intervene on the basis that the correct means to bring such change lies through legislation. This predicament has endorsed the sustenance of exception 2 of Sec. 375 IPC which has consequently chastened the sexual autonomy and privacy of a married Indian woman.

It is not that alternate remedies are not available, but their availability and impact, both, are mild and they also do not impose the epithet of a 'rapist'. Nonetheless, one alternative remedy which imposes a penalty as severe as that for rape and under which husband could be charged to a certain extent, is violation under Sec.377. However, the author will argue in this article that one of the reasons given by SC in Navtej Johar v. UOI to declare sec. 377 unconstitutional, to the extent that it applied to sexual activities between consenting adults, also makes it inapplicable to the sexual activities that a husband enforces on his wife without her consent.

PART 1

Pre- Navtej Johar

The language of Sec. 377 of Indian Penal Code reeks of an archaic conception of sexual relations. It was introduced in the Victorian era and has survived in the Indian Penal Code since then. To illustrate on it further it is better to reiterate the section: -

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section

A simple reading of the section revealed that carnal intercourse against the order of nature coupled with penetration was the gist of the offence and it can be divided into three neat compartments- firstly, it penalized sexual activities between the homosexuals, secondly, it penalized certain specific sexual activities between the heterosexuals and lastly, it penalized sexual activities with animals (Bestiality). The present article will focus on the second type of offences which had an impact on marital relationships as well, as every married couple stayed vulnerable to Sec. 377 if they were doing any sexual act besides penile-vaginal intercourse. The terms 'carnal intercourse against the order of nature' (hereinafter referred to as unnatural intercourse) and 'penetration' are not defined under the Indian Penal Code, but the judiciary had given them a wide and non-uniform interpretation when read together. It took into ambit : (i) any sexual act with no possibility of procreation, (ii) a (non)consensual anal intercourse between a man and a woman (including that between a husband and wife), (iii) inter-femoral (thigh) sex, (iv) Oral sex between opposite sex.

However, the silver lining of this wide interpretation was that it allowed married women to file a criminal complaint against their husbands if they indulged in non-consensual unnatural sexual activities.

Consequently, what was further demanded out of NavtejJohar was that the Supreme Court would make it explicitly clear in their ratio that when it comes to heterosexual couples, Sec. 377 would only be used to penalize non-consensual activities.

PART-II

Navtej Johar v. UOI

In the writ petition of Navtej Johar v UOI,the lawyers contended that Sec. 377 has been rendered superfluous because child abuse and sexual offences other than penile rape are already covered by POCSO Act, 2013 and Sec. 375 of IPC after the Criminal Law Amendment Act 2013. Their primary argument behind this contention was that the prevalence of Sec. 377 is not additionally assisting the maintenance of law and order in any manner; on the contrary it is abetting the harassment of people indulging in consensual sexual affairs.

To further understand this above mentioned argument, it is important to reiterate the amended sec. 375.

"A man is said to commit "rape" if he—

1. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

2. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

3. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

4. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person…"

The amendment of Sec. 375 in 2013 immensely widened the ambit of rape to include almost every form of sexual activity that humans tend to indulge in. The first impression that this amendment leaves on the society is that it was made to penalize the wide range of heinous crimes that men tend to commit on a woman's body, however there is an another angle to it as well. The amendment also reflects what is regarded by a particular society at a particular time as an 'acceptable sexual act'. The societal ideal of sex is not constant and it changes with time. Accordingly, the new elaborative definition of rape portrays the idea that now all the mentioned form of sexual activities are acceptable to the society if done consensually.

Four concurring judgement were delivered in Navtej Johar, and in each one of it the judges extensively discussed the interplay between Sec. 375 (amended) and sec. 377 and ruled that the prevailing interpretation of unnatural under sec. 377 is contrary to the law laid down under sec. 375.

Justice Chandrachud explained that "The Criminal Law (Amendment) Act 2013 imported certain understandings of the concept of sexual intercourse into its expansive definition of rape in Section 375 of the Indian Penal Code, which now goes beyond penile–vaginal penetrative intercourse. It has been argued that if 'sexual intercourse' now includes many acts which were covered under Section 377, those acts are clearly not 'against the order of nature' anymore. They are, in fact, part of the changed meaning of sexual intercourse itself. This means that much of Section 377 has not only been rendered redundant but that the very word 'unnatural' cannot have the meaning that was attributed to it before the 2013 amendment. Section 375 defines the expression rape in an expansive sense, to include any one of several acts committed by a man in relation to a woman. The offence of rape is established if those acts are committed against her will or without the free consent of the woman. Section 375 is a clear indicator that in a heterosexual context, certain physical acts between a man and woman are excluded from the operation of penal law if they are consenting adults. Many of these acts which would have been within the purview of Section 377, stand excluded from criminal liability when they take place in the course of consensual heterosexual contact. Parliament has ruled against them being regarded against the 'order of nature', in the context of Section 375. Yet those acts continue to be subject to criminal liability, if two adult men or women were to engage in consensual sexual contact. This is a violation of Article 14."[para 31]

The other four judges Justice A. M Khanwilkar, Justice Dipak Misra , Justice R.F.Nariman and Justice Indu Malhotra also agreed with the above-mentioned interpretation and reiterated the same in their judgments, hence making it a ratio.

Accordingly, on the ground of above mentioned reasoning and other reasoning, Supreme Court declared that Sec. 377 would not apply to consensual sexual activities. The judgment is being praised world-wide for upholding the rights of LGBTQ and reinstating people's faith in transformative constitutionalism. However, in the process of achieving the greater good, the judiciary has left the definition of unnatural in ambiguity and has also suppressed the rights of a not so recognized minority - the married women.

PROBLEM WITH NAVTEJ JOHAR

The sacredness of marriage has always been used as a tool to suppress women's rights, they are treated as the property of their husbands and this essentially explains the provision that makes marital rape an exception to rape. Sec. 375, exception 2 states that "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape". Sec. 377 is supposed to be one of the strongest tools that married women can use against their husbands if they forcibly and non-consensually indulge into sexual activities, beside penile-vaginal intercourse. However, Supreme Court's step to read Sec. 375 and Sec. 377 in harmony and to illustrate that they are interdependent can have major repercussions. It can actually deprive married women of their right to complain against the sexual violence of their husbands.

As explained above, the Supreme Court read Sec. 377 in consonance with Sec. 375. It held that all the sexual activities that might have been considered unnatural previously are now well covered under Sec. 375, which means that these activities would form a part of rape if performed non-consensually and performing them consensually would not attract any offence. Acceptance of this illustration would mean that Sec. 375 would override the applicability of Sec. 377 in the case of heterosexual couples, which would inevitably include all the provisions of Sec 375. Consequently, exception 2 of sec 375 which makes marital rape an exception to rape would also have an overriding effect.

The repercussions of it can be well understood through an example. If in 2019, a wife files a complaint against her husband under Sec. 377 for performing non-consensual sexual acts like penile-anal intercourse, Coitus Per Os (Mouth contact with male genitals) etc., during the trial the court will refuse to accept her argument stating that as per Navtej Johar all these acts are part of rape under Sec. 375 and not of 'carnal intercourse against the order of nature' under Sec. 377. Consequently, the wife will be left with no remedy against the sexual atrocities of her husband because besides Sec. 377 being inapplicable, exception 2 of sec. 375 restraint her from filing a complaint of rape against her husband.

CONCLUSION

The Supreme Court's observation that the meaning of 'unnatural' under Sec. 377 is not clearly determinable and all the activities defined under it are now part of Sec.375 was probably not thought from all the dimensions. Whatever the case be, Supreme Court's observation has hindered the empowerment of married women in the society in matters of marital sexual relationship. The fault is also of Justice Verma Committee which, while suggesting the inclusion of all forms of non-consensual sexual penetration into the definition of rape, did not deliberate upon its impact on Sec. 377.

It is hard to determine whom to blame more for the apathy towards the rights of married women. But the consequences of it are clearly visible. Navtej Johar has deprived married women the right to have sexual autonomy and has reinstated the archaic ideology that a wife is husband's property. Moreover, at a bigger picture the inter-relation between Sec.375 and Sec.377 of Indian Penal Code has left the definition of 'unnatural' so ambiguous that without any amendment it would become troublesome to even penalize homosexual non-consensual sexual acts.

The most suited route to come out of this predicament is that the legislature should amend Sec. 377 to define unnatural sexual intercourse and make it explicit that it shall apply to all the non-consensual unnatural acts with no exceptions.

It is often seen that when the legislature is lackadaisical in bringing out a change, the judiciary takes up that job. If it boils down to that in the present situation as well, then the judiciary should also preferably take the above suggested route. All in all, an immediate change is required to redirect the development of law in the right course and further empower the women of the country. 

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(Author is a B.A. LLB, Student At Dr. Ram Manohar Lohiya National Law University)