Rape is Rape.... Or is it?

  • Sanya Talwar
  • 09:27 PM, 26 Aug 2021

Rape is a crime. But in India, it comes with certain conditions. The conditions inter alia, include the impossibility of a married woman[i]  being raped by her husband. The legal foundations of this “principle” can be found in English Jurisprudence.

An Englishman, Sir Mathew Hale (Former Chief Justice of England), said hundreds of years ago, that a husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife has given up herself unto her husband and that it is a consent which she cannot retract on.

It was common law jurisprudence which ultimately reduced the status of women to “Chattel”[ii], pushing the view on its colonies that a woman is in fact, a man’s estate.

Be it as it may, as Melissa J. Anderson notes in her research paper, despite the fact that Hale cited absolutely no legal authority for his statement, it reigned supreme in the English-based judicial systems for over two hundred years as the reason for the continued recognition of the exemption.

The Supreme Court of India, in October 2017, traced the concept of Marital Rape as being recognised under exception(s) to the offence of Rape, to Hale’s utterance (which formed part of common law over the years)[iii] , while also clarifying that the said notion is outdated and has been done away with in all major Jurisdictions as observed by the Committee on Amendments to Criminal Law chaired by Late Justice J.S. Verma (Retired).

Even though, Independent Thought did not create a new offence of “marital rape”,  it struck down Exception 2 to Section 375 IPC, observing that it needs to be read down in order to “bring it within the four corners of law and make it consistent with the Constitution of India and other progressive child rights legislations”.

Court read down the anomaly, whereby, the offence of rape in cases of forced sexual intercourse by a man with his own wife if she is of 15 years of age or above was exempted.

Essentially, the two-judge bench raised the age of consent to 18 for all sexual activity.

Recently, however, there has been a conundrum on this position, (where there should be none) and either, the High Courts seem to be going against this position of the Supreme Court or have overlooked the observations of the Supreme Court in Independent Thought.

In one of the judgments, passed by a single Judge bench of the Allahabad High Court[iv], it was held that sex with wife who is above 15 years of age would not be rape.

The National Commission for Protection of Child Rights had then urged the Uttar Pradesh government to appeal against this specific Allahabad High Court order, citing the Supreme Court judgement in Independent Thought.

In a letter addressed to UP Chief Secretary, NCPCR chairperson Priyank Kanoongo raised concerns about the verdict. He said that the provisions of the POSCO Act prevail over the personal laws as well as IPC.

"In the present matter, the order passed by the Hon'ble Allahabad High Court, it has been observed by the Commission that the prosecution has failed in presenting the case of the minor properly. If the prosecution had made the submissions as per the spirit of the POSCO Act, the accused would not have been granted bail in such a serious offence," Kanoongo said in his letter.On the other hand, though a Chhattisgarh High Court bench said[v] that "sexual intercourse or sexual act by a man with his wife, the wife not being under 18 years of age, is not rape,” and abided by the position taken by Supreme Court in Independent Thought, it reinforced the idea that a Rape charge against husband is “erroneous & illegal” even if intercourse was by force or against wife’s will.

A Gujarat High Court ruling of 2017[vi] noted that, “It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”

“Rape is Rape,” the Delhi High Court had also recently stated observing that, “Marriage does not mean that the woman is all time ready, willing and consenting [for sex]. The man will have to prove that she was a consenting party.”

Nonetheless, though there are enough precedents including the landmark case of Justice KS Puttuswamy Vs. Union of India[vii], in which the Supreme Court held that right to make choices about sexual activity is very much within the scope of rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution and Suchitra Srivasatava Vs. Chandigarh Administration[viii], in which the Top Court has categorically held that forced sexual intercourse and cohabitation is a violation of that fundamental right, the position of the Courts seem to be deflecting from the larger picture, even in cases of marital rape of girls below 18 years.

Why are there differing views by Courts on the issue of Marital rape?

Advocate Vikram Srivastava, Founder of the NGO "Independent Thought" says,

“How different is this (legalising marital rape of girls over 15 years) from the Taliban searching for girls above 15 years of age in Afghanistan?”

Sensitisation is a priority, says Srivastava. He says that the conundrum that is perpetually ongoing reminds him of the stale excuses we hear at the grassroots for non-implementation of laws - that Police personnel are part of the same society and so we should have limited expectations.

“It seems the need for sensitisation is across the board and collective effort is required to change the mindset; which is well captured in the Ad which says ‘Men will be Men,” he adds.

Srivastava further delves into the issues that continue to run amok in the Judicial system.

 “It is shocking that even after almost 4 years of the judgment, gravity of the issue still eludes minds of people in authority. Judgments going against the norm set by the apex court only reflect the level of fixation for patriarchal status quo,” Srivastava says.

I hope the long pending formal amendment to the IPC by the Parliament as required by the Independent Thought judgment, may trigger change, he adds.

[With inputs by Ratna Singh, Legal Correspondent]

[i] Though the Supreme Court of India, in Independent Thought Vs. Union of India [WP (C) 382/2013] increased the age of consent for sexual intercourse within marriages to 18, marital rape continues to unrecognised in the Indian Legal System and unfortunately, several judgments over the past few months seem to have been disagreeing with this position of the Supreme Court of India. Others have reinforced the idea of legitimizing marital rape.

[ii]Independent Thought Vs. Union of India WP (C) 382/2013, see paras 72, 73, 82-84

[iii]Supra [ii]

[iv]Khushabe Ali Vs. State of U.P., Criminal Misc. Bail Application No. - 3179 of 2021

[v]Dilip Pandey &Ors. v. State of Chhattisgarh, CR.R. No. 177 of 2021

[vi]NimeshbhaiBharatbhai Desai vs State Of Gujarat, R/CR.MA/26957/2017  

[vii]WRIT PETITION (CIVIL) NO. 494 OF 2012

[viii]CIVIL APPEAL NO.5845 OF 2009