A Greek Comedy And An Indian Tragedy; Marital Rape Exception Under The Indian Law Must Go

The women of ancient Greece were often seen as subhuman and had little rights in comparison to their male counterparts. Greek women were not entitled to vote, to own, or to inherit property. The woman's sole purpose was to entertain their men, bear and rear children, and to manage the household. The females in this play are depicted by Aristophanes as determined souls who take matters into their own hands, which are considered highly unusual for them at that time. This play is an ancient instance, though imaginary, where a band of women asserts their sexual autonomy and agency.

The Indian Tragedy

But millennia after the victory of Lysistrata, sexual self-determination is a distant dream for the woman in India. Marital rape exception is the best example of the denial of sexual autonomy to the India woman. It's an Indian tragedy that the exception 2 of Section 375 of the Indian Penal Code de-criminalizes marital rape and holds that non-consensual sexual intercourse by a man with his own wife is not rape if the wife is at least 15 years old. The Supreme Court recently sought the response of the Union government on a batch of petitions against the Delhi High Court's split verdict on the issue of marital rape.

On September 30, 2022 the Supreme Court of India, while hearing the plea of an unmarried woman who wanted to abort her child beyond 20-24 weeks of pregnancy, observed that every woman in India has equal rights to the safe and legal termination of pregnancy, and added that "Rape includes marital rape too." But a final decision on the criminalization of marital rape is still pending with the Supreme Court. Marital rape is clearly violates women's right to privacy, dignity and sexual autonomy.

Engaging in the sexual intercourse without the spouse's consent is now widely classified as rape by many societies around the world, repudiated by international conventions, and increasingly criminalized. The views of marriage and sexuality started to be challenged in western world from the 1960s and 70s especially by second-wave feminism leading to an acknowledgment of the woman's right to self-determination of all matters relating to her body and sexuality. More than 102 countries across the globe, including Nepal and Bhutan, have criminalized marital rape.

Woman was (and still is in many cultures around the world) considered as property of man; first the property of her father and after marriage, property of her husband. Rape was not perceived as a crime against women and her dignity until the last half of the 20^th century. It was considered a crime against her family or her husband. Rape laws were enacted to protect the property rights that men had for their women, not to protect women themselves. Victorian law and morality assumed that a husband could not be prosecuted for raping his wife because she was his property.

Sir Mathew Hale, English jurist, in his History of the Pleas of the Crown (1736) opined that "the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up to her husband, consent which she cannot retract." This view prevailed in the English jurisdiction until it was repealed by the House of Lords in R v. R in 1991. In this case, the House of Lords determined that under English criminal law, it is a crime for a husband to rape his wife. While abolishing the legal fiction of marital rape exemption, the House of Lords held: "Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable."

A Shining Verdict

Menaka Guruswamy and Arundhati Katju in their essay From Adultery to Sexual Autonomy: The Constitutional Potential of Joseph Shine (in the anthology titled Sex and the Supreme Court: How the Law is Upholding the Dignity of the Indian Citizen edited by Saurabh Kripal in 2020) argue that by extending the doctrine of constitutional morality to the marital relationship, Joseph Shine [verdict] is a critical stepping stone to striking down the marital rape exception. The Supreme Court in Navtej Singh Johar and Joseph Shine verdicts proclaimed that sexuality is an integral part of citizenship. In Joseph Shine v. Union of India (2018), the Court struck down S.497 of the IPC which enabled a 'hurt husband' to initiate criminal action against her spouse's male lover; but not the 'hurt wife' who is facing exactly the same infidelity. The Court held that social morality must bend before constitutional values of equality and dignity.

"Women have the right to love according to her choice and also an absolute right to reject''- the Court observed. Justice D.Y. Chandrachud pointed out that 'marriage is a constitutional regime founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees'. By basing the Joseph Shine verdict upon female sexual autonomy, the Supreme Court signaled a far-reaching jurisprudential paradigm shift. The laws regarding marriage and family must be in consonance with the basic tunes of the constitutional music- liberty, equality and dignity of the individual. Let's hope that the Supreme Court, pursuing the spirit of Joseph Shine, would put a closing scene to the absurd tragedy long running on the Indian legal arena i.e. marital rape exception.

The author is Under Secretary (Law) to the Government of Kerala. Views are personal.