No Immunity to Husbands

Rape does indeed happen between girlfriend and boyfriend, husband and wife. Men who force their girlfriends or wives into having sex are committing rape, period. The laws are blurry, and in some countries marital rape is legal. But it still is rape.”

—From the book “Invisible Girls: The Truth About Sexual Abuse” by Dr Patti Feuereisen

We all have heard that marriage is a sacred institution, a bond of mutual trust, love and respect. But does this grant license to the husband to force himself on his wife?

Observing that the age-old regressive notion that “husbands are the rulers of their wives, their body, mind and soul should be effaced”, the Karnataka High Court recently refused to drop the charge of rape against a man who had raped and had unnatural sexual intercourse with his wife. The Court was of the view that a man cannot escape trial mainly because the victim is his wife.

The man had knocked the doors of the High Court after a Special Court in Bengaluru framed charges against him for the offence under Section 376 (rape) of the Indian Penal Code, 1860, upon a complaint filed by the wife in 2017. She alleged that she had been subjected to physical and mental torture by her husband on multiple occasions during the wedlock. She further alleged that her husband had sexually assaulted their minor daughter as well.

Section 375 codifies the definition of rape. However, Exception 2 to Section 375 grants immunity to husbands from unwilling sexual intercourse with his own wife, the wife not being under 15 years of age. It is this exception that has reignited the debate over marital rape once again.

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Justice M Nagaprasanna, while dealing with the issue in the present case, said:  “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’.” He added that the institution of marriage does not confer, cannot confer and should not be construed to confer any special male privilege or license for unleashing of a brutal beast for any of the acts which when performed by a common man are made to be punishable.

While noting that the Constitution, which is the fountainhead of all statutes, treats women equal to men and does not in any manner depict them to be subordinate to them, the Court underlined: “If the Constitution mandates equality, the statute ought to follow suit. If a man, a husband, a man he is, can be exempted of allegation of commission of ingredients of Section 375 of the IPC, inequality percolates into such provision of law. Therefore, it would run counter to what is enshrined in Article 14 of the Constitution.”

While calling on lawmakers to ponder over the existence of such inequalities in law and to “hear the voices of silence”, the judge added:

“A brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape. Such sexual assault by a husband on his wife will have grave consequences on the mental sheet of the wife, it has both psychological and physiological impact on her. Such acts of husbands scar the soul of the wives.”

However, in a similar case, the Gujarat High Court in Nimeshbhai Bharatbhai Desai vs State of Gujarat (2018), dropped rape charges framed against the husband and called on the legislature to go into the soul of the issue of marital rape and to criminalise it.

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The genesis of Section 375 of the IPC and its exception has its roots in the Code propounded by Lord Thomas B Macaulay in 1837, which governs the penal provisions in the country till date. The “marital rape exception”, which has existed since the time of enactment of the Code in the Victorian era, was carved out in order to favour the conjugal rights of the husband. It traces its origin from the common law doctrines of “coverture” and “implied consent”—the proposition that the legal rights of a woman were subsumed by her husband after marriage and by entering into marriage, a wife was considered to have granted irrevocable sexual consent to her husband. According to Sir Matthew Hale, a husband can never be held guilty of raping his lawful wife “for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract”.

This archaic concept, though declared to be illegal in many countries now, continues under the Indian statute. In fact, India is one of the 36 countries that have still not criminalised marital rape. The exemption is justified on the ground that the exception if removed could become a potent tool in the hands of unscrupulous wives to harass their husbands and could destabilise the institution of marriage.

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Furthermore, it is difficult to measure instances of marital rape as most of the acts of sexual and other abuse occur within the four walls of a room and often go unreported. According to the latest National Family Health Survey, about 30% Indian women aged 18-49 reported having experienced spousal violence. In terms of sexual violence, the average Indian woman is 17 times more likely to face sexual violence from her husband than from anyone else.

The debate around the constitutionality of marital rape exemption gained momentum after the 2013 Justice JS Verma Committee, set up in the aftermath of horrific Nirbhaya incident. It was meant to look into possible amendments in criminal laws related to crime against women and had made recommendation for removal of marital rape exemption stating that the existence of marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife. The recommendation, however, was not paid heed to.

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Subsequently, a bunch of petitions were moved before the Delhi High Court challenging the constitutionality of marital rape inasmuch as it creates an artificial distinction between two classes of women based on their marital status, which is currently pending consideration. The central government, during the course of the proceedings, informed the Court that a consultative process on the issue is in progress among all the stakeholders and a comprehensive decision is likely to be taken up after comments from state governments and other stakeholders as the issue at hand has a direct bearing on society in general.

The apex court in Independent Thought vs Union of India (2017) criminalised sexual intercourse with a wife between 15-18 years of age with or without consent. Now, sexual intercourse with a girl below 18, whether married or unmarried, amounts to rape even if she had consented to the same. However, the larger issue of marital rape of adult women was not dealt with in this case. 

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—By Banshika Garg and India Legal Bureau