In recent days, the Delhi High Court has been hearing a public interest litigation challenging the constitutionality of the second exception to Section 375 of the Indian Penal Code, 1860, which protects husbands from prosecution even if they have have had non-consensual sexual intercourse with their wives.

In December, in a similar PIL, the Gujarat High Court issued a notice to the State government.

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being fifteen years of age, is not rape,” the exception reads. While the constitutionality of this exception has been assailed on several fronts, it is the equality challenge that might bear importance going forward.

The Indian Constitution, under Articles 14 and 15, guarantees the right to equality and non-discrimination. Article 14 says that the state shall not deny to any person equality before the law, or equal protection of the laws. Article 15 says that the state shall not discriminate against any citizen on grounds only of race, religion, caste, sex or place of birth.

The second exception under Section 375 de-classifies an act as rape based on the identity of the offender. It differentiates between rapists who are husbands and those who are not.

This difference has no bearing on whether or not rape has actually occurred, and thus, this exception denies to the victims of marital rape equal protection of the law. Alternatively, the second exception constitutes discrimination on the grounds of sex or gender, as married women are denied redressal against rape, an act of gendered sexual violence.

Other discriminatory laws

Married women may have been placed at a detriment under the exception, but this is not the only statute that differentiates between married and unmarried women. For example, government schemes, such as the Pradhan Mantri Shram Yogi Maandhan Yojana, allow only the spouse of a deceased subscriber to receive the pension amount.

Similarly, under laws dealing with employment benefits such as gratuity, employees cannot nominate a person who is not a member of a heterosexual family set-up. The definition of “dependant” under Section 2(d) of the Workmen’s Compensation Act, 1923, too, is restricted to relatives of a deceased worker including the widow, children and parents amongst others.

Likewise, the right to maintenance, under Section 125 of the Code of Criminal Procedure, can only be availed of by the wife, child or parents of a person. In all these cases, the law privileges married women over women in other forms of kinship relationships, to incentivise people to enter into the heterosexual, patriarchal marriage.

Can a law, then, be struck down because it disadvantages married women on account of their marital status? Admittedly, marital status is a ground for courts to strike down laws as discriminatory, as in South Africa, particularly when viewing same-sex or queer relationships, or live-in heterosexual unions.

However, in the case of marital rape, we may not need to enter that debate. For married women, there is no manifestation of discrimination on the basis of marital status that is detached from their identity as women. If this is true, it would fall within the prohibition against gender discrimination under Article 15(1) of the Constitution. In order to understand why this is so, it is useful to examine the antecedents of marriage.

In 1884, Marxist philosopher Friedrich Engels famously argued that the constructs of marriage and family enforced the “domestic slavery” of the wife, and the division of labour to the advantage of men. Women were not granted legal personhood under law in almost every country, and were presumed to be the property of their husbands.

In England, women could not hold property until the enactment of the Married Women’s Property Act in 1882. The religious aspects of marriage also afforded the subordination of women a sacramental value. Within Hinduism, the Manusmriti states that women must always be under the control of her father, husband or son. The Quran asserts that marriage is the only legitimate and acceptable way to express sexual desire [24:32].

Patriarchal conditions

Feminist theorist Judith Butler offers another lens by arguing that marriage is a means for the State to legitimise and delegitimise sexual relations – for centuries, marriage has been the only site of socially and legally acceptable sex for women. The marital rape exception, by permitting the husband’s sexual, emotional and physical domination over the wife, preserves the traditional marriage set-up, which in turn maintains patriarchal social conditions.

This defence of marriage has found resonance in the legislative debates on the issue in the Indian Parliament. In 1983, while debating amendments to the definition of rape, several Members of Parliament dismissed the idea that a husband could rape his wife. Subsequently, in 2012, the JS Verma Committee, constituted after the December 2012 gangrape and murder of a 22-year-old woman in New Delhi, had recommended the deletion of the second exception to Section 375.

In response, the department-related Parliamentary Standing Committee on Home Affairs in 2013 rejected this recommendation on the ground that the entire family system would be put under great stress. The home secretary further noted that thousands of marriages would be outlawed by this one stroke.

This stance has since remained unchanged. In 2015, an unstarred question was posed to the minister of home affairs on the introduction of a bill to remove the exception. In response, the Minister of State for Home Affairs Haribhai Parthibhai Chaudhary stated that the removal of the exception would not be suited to the Indian context, where marriage is viewed as a sacrament.

Similar responses were provided to unstarred questions in the Rajya Sabha on May 5, 2016, and August 4, 2016, as well. From the legislative debate, it becomes apparent that the differential treatment of married women is rooted in the patriarchal nature of marriage: an institution that is the foundation of the present social set-up.

Moreover, whether it is the Code of Criminal Procedure or the Workmen’s Compensation Act, a large chunk of our legal framework, too, has been designed to preserve and perpetuate this institution. Therefore, discrimination faced by women based on their marital status is often a manifestation of this structural gender inequality.

An opportunity

In hearing these constitutional challenges, the High Courts of Delhi and Gujarat must not confine themselves to whether marital rape violates the guarantee of an equal protection of laws because it differentiates between married and unmarried woman, or between rapists who are husbands and ones who are not.

They have an opportunity to consider the issue of marital rape against the gendered history of the institution of marriage, as well as the manner in which the law reinforces patriarchy through marriage. In doing so, these decisions may offer a new lens under Articles 14 and 15 to revisit several of our laws that deal with the institution of marriage.

Unnati Ghia and Dhruva Gandhi are advocates at the Bombay High Court. They are graduates of the National Law School of India University, Bangalore.