The simmering controversy over the marital rape exception was stoked again on Wednesday, when responding to a written question in Rajya Sabha, the minister of state for home, Haribhai Parathibhai Chaudhary, said:
The refusal to criminalise marital rape is not a partisan issue. In the aftermath of the December 2012 Delhi gangrape, the Justice Verma committee had recommended removing the marital rape exception as part of a package of criminal law reforms. However, this suggestion was rejected by the then-ruling United Progressive Alliance government.
Constitutionality
With the major parties seemingly unwilling to accept the proposition that non-consensual sexual intercourse within marriage should be treated as rape, the political battle is lost for now. Is it possible, however, to question the constitutionality of the marital rape exception? At first blush, it seems that the Exception to Section 375 of the Indian Penal Code, which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”, falls foul of at least two constitutional provisions.
The first is Article 14, which guarantees the equal protection of laws to all persons. The marital rape exception, however, denies to married women the protection of laws against rape, a protection that is extended to unmarried women. In other words, it unequally burdens a class of women solely on the basis of their marital status. And secondly, by depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.
Marital privacy
Proponents of the marital rape exception, however, argue that it is essential to preserve the integrity of marriage, which is a crucial social institution. Article 14 does permit “reasonable classification”, and a classification between married and unmarried women, which is grounded upon preserving marriage, must be reasonable (or so the argument goes). They also argue that marital privacy requires that the State refrain from interfering with whatever takes place within the home (and more specifically, within the bedroom). The home is a private domain, a retreat and a shelter from the world, and the entire purpose of securing a right to privacy would be defeated if sexual intercourse within marriage could be made the subject of legal proceedings.
The traditional association between a right to privacy and the physical spaces of the home and the bedroom has long been criticised. Keeping the State and the law out of the home ensures the perpetuation of inequalities that exist within the domestic, private sphere, and entrenches existing structures of power and domination. One of the most pronounced inequalities – physical, social and economic – is the one between men and women. Critics argue, therefore, that marital privacy – which justifies laws such as the marital rape exception – is a fundamental denial of society’s commitment to treating all persons with equal concern and respect.
Trilogy of judgments
In the Indian judiciary, this argument was made once, in a 1983 judgment that is rarely studied and long-forgotten, but whose relevance is as pressing today as it was 20 years ago. In T. Sareetha vs Venkatasubbaiah, the Andhra Pradesh High Court was called upon to consider the constitutional validity of Section 9 of the Hindu Marriage Act. Titled “Restitution of Conjugal Rights”, and an old colonial implant, Section 9 authorises the Court to grant the “restitution of conjugal rights” in situations where a “husband or the wife has without reasonable excuse withdrawn from the society of the other.” In other words – on the pain of enforcing various civil penalties – the Court may order one estranged spouse to return to the company of the other.
In Sareetha’s Case, Justice Choudary of the Andhra Pradesh High Court struck down Section 9 for violating Articles 14 and 21 of the Constitution. Refusing to put the institution of marriage on a sacred pedestal, and refusing to stop at the threshold of the home and blind himself to the realities that take place inside, Justice Choudary held:
Of course, Section 9 only authorised a decree for restoring one spouse to the society of the other, and did not compel sexual intercourse. As Justice Choudary was well aware, however, the inequalities of the private sphere would ensure that for many women, compelled society would inevitably translate into compelled sexual intercourse. This, according to him, was impermissible and unconstitutional, because:
By placing the individual – and not the family, or the institution of marriage – at the heart of the enquiry, Justice Choudary was able to strike down Section 9 for violating Article 21, and violating the right of every individual to sexual autonomy and privacy. And in another strikingly perceptive and sensitive paragraph, he went on to hold it violated Article 14 as well:
Justice Choudary’s conception of privacy as an individual right that exists anterior to, and is not overridden by, the bonds of marriage, and his understanding of the inequalities that exist within the private sphere, could have been the foundation of a progressive jurisprudence that would eventually have struck down the marital rape exception. Unfortunately, his conclusions were too radical for a conservative judiciary to stomach. One year afterwards, the Delhi High Court disagreed with him, noting that introducing constitutional law into the home would be like a “bull in a china shop”, and would “destroy the marriage institution.” And in that same year, when the matter went to the Supreme Court, it agreed with the Delhi High Court, and overruled Justice Choudary – basing its judgment entirely upon the unquestioned need to preserve the institution of marriage. The opportunity to forge a new constitutional jurisprudence of gender equality, founded upon sexual autonomy and dignity, was lost.
Many years have passed since this trilogy of judgments, and the constitutionality of marital rape has not directly been challenged. A recent attempt to do so was rebuffed by the Delhi High Court. It is to be hoped, however, that if the issue ever returns to the courts, rather than invoking the arid concepts of the “marriage as a sacrament” and “marital privacy”, it is Justice Choudary’s long-ignored vision of individual autonomy and dignity, which will ultimately carry the day.
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"It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament."
The refusal to criminalise marital rape is not a partisan issue. In the aftermath of the December 2012 Delhi gangrape, the Justice Verma committee had recommended removing the marital rape exception as part of a package of criminal law reforms. However, this suggestion was rejected by the then-ruling United Progressive Alliance government.
Constitutionality
With the major parties seemingly unwilling to accept the proposition that non-consensual sexual intercourse within marriage should be treated as rape, the political battle is lost for now. Is it possible, however, to question the constitutionality of the marital rape exception? At first blush, it seems that the Exception to Section 375 of the Indian Penal Code, which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”, falls foul of at least two constitutional provisions.
The first is Article 14, which guarantees the equal protection of laws to all persons. The marital rape exception, however, denies to married women the protection of laws against rape, a protection that is extended to unmarried women. In other words, it unequally burdens a class of women solely on the basis of their marital status. And secondly, by depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21.
Marital privacy
Proponents of the marital rape exception, however, argue that it is essential to preserve the integrity of marriage, which is a crucial social institution. Article 14 does permit “reasonable classification”, and a classification between married and unmarried women, which is grounded upon preserving marriage, must be reasonable (or so the argument goes). They also argue that marital privacy requires that the State refrain from interfering with whatever takes place within the home (and more specifically, within the bedroom). The home is a private domain, a retreat and a shelter from the world, and the entire purpose of securing a right to privacy would be defeated if sexual intercourse within marriage could be made the subject of legal proceedings.
The traditional association between a right to privacy and the physical spaces of the home and the bedroom has long been criticised. Keeping the State and the law out of the home ensures the perpetuation of inequalities that exist within the domestic, private sphere, and entrenches existing structures of power and domination. One of the most pronounced inequalities – physical, social and economic – is the one between men and women. Critics argue, therefore, that marital privacy – which justifies laws such as the marital rape exception – is a fundamental denial of society’s commitment to treating all persons with equal concern and respect.
Trilogy of judgments
In the Indian judiciary, this argument was made once, in a 1983 judgment that is rarely studied and long-forgotten, but whose relevance is as pressing today as it was 20 years ago. In T. Sareetha vs Venkatasubbaiah, the Andhra Pradesh High Court was called upon to consider the constitutional validity of Section 9 of the Hindu Marriage Act. Titled “Restitution of Conjugal Rights”, and an old colonial implant, Section 9 authorises the Court to grant the “restitution of conjugal rights” in situations where a “husband or the wife has without reasonable excuse withdrawn from the society of the other.” In other words – on the pain of enforcing various civil penalties – the Court may order one estranged spouse to return to the company of the other.
In Sareetha’s Case, Justice Choudary of the Andhra Pradesh High Court struck down Section 9 for violating Articles 14 and 21 of the Constitution. Refusing to put the institution of marriage on a sacred pedestal, and refusing to stop at the threshold of the home and blind himself to the realities that take place inside, Justice Choudary held:
“The consequences of the enforcement of such a decree are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one's body to be used as a vehicle for another human being's creation to the State… there can be no doubt that a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected, to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person… sexual expression is so integral to one's personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”
Of course, Section 9 only authorised a decree for restoring one spouse to the society of the other, and did not compel sexual intercourse. As Justice Choudary was well aware, however, the inequalities of the private sphere would ensure that for many women, compelled society would inevitably translate into compelled sexual intercourse. This, according to him, was impermissible and unconstitutional, because:
“… any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”
By placing the individual – and not the family, or the institution of marriage – at the heart of the enquiry, Justice Choudary was able to strike down Section 9 for violating Article 21, and violating the right of every individual to sexual autonomy and privacy. And in another strikingly perceptive and sensitive paragraph, he went on to hold it violated Article 14 as well:
“By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievably whereas the husband's can remain almost as it was before. This is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife's future plans of life and prevents her from using that self-destructive remedy. Thus the use of remedy of restitution of conjugal rights in reality becomes partial and one-sided and available only to the husband... As a result this remedy works in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”
Justice Choudary’s conception of privacy as an individual right that exists anterior to, and is not overridden by, the bonds of marriage, and his understanding of the inequalities that exist within the private sphere, could have been the foundation of a progressive jurisprudence that would eventually have struck down the marital rape exception. Unfortunately, his conclusions were too radical for a conservative judiciary to stomach. One year afterwards, the Delhi High Court disagreed with him, noting that introducing constitutional law into the home would be like a “bull in a china shop”, and would “destroy the marriage institution.” And in that same year, when the matter went to the Supreme Court, it agreed with the Delhi High Court, and overruled Justice Choudary – basing its judgment entirely upon the unquestioned need to preserve the institution of marriage. The opportunity to forge a new constitutional jurisprudence of gender equality, founded upon sexual autonomy and dignity, was lost.
Many years have passed since this trilogy of judgments, and the constitutionality of marital rape has not directly been challenged. A recent attempt to do so was rebuffed by the Delhi High Court. It is to be hoped, however, that if the issue ever returns to the courts, rather than invoking the arid concepts of the “marriage as a sacrament” and “marital privacy”, it is Justice Choudary’s long-ignored vision of individual autonomy and dignity, which will ultimately carry the day.