Over the last several months, arguments challenging the constitutionality of the marital rape exception in Section 375 of the Indian Penal Code (IPC) had gripped the Delhi High Court. While the judgment in those petitions is still awaited, in one clean swoop Justice M. Nagaprasanna of the Karnataka High Court on March 23, 2022, in the case of Hrishikesh Sahoo vs State of Karnataka, pronounced the end of the marital rape exception.
The background
Outcomes in judicial proceedings are almost always shaped by the cases which come before the courts. This judgment was a result of a unique case where a woman had filed a criminal complaint of rape against her husband due to the repeated acts of sexual assault she had to face. The police registered her complaint under Section 376 notwithstanding the marital rape exception, a charge sheet was filed and the Sessions Judge took cognisance and framed charges under Section 376. The husband filed an application to drop the charge of Section 376 but the Sessions Judge rejected it. This led to the husband approaching the High Court seeking to quash the criminal proceedings.
In a nuanced and far-reaching judgment, Justice Nagaprasanna refused to quash the charge of rape against the husband. He held that if a man, being a husband is exempted for his acts of sexual assault, it would destroy women’s right to equality, which is the very soul of the Constitution. He held that the Constitution recognises and grants equal status to women, but the exception to marital rape in the IPC amounts to discrimination because a wife is treated as subordinate to the husband. The Constitution considers marriage as an association of equals and does not in any sense depict women to be subordinate to men and guarantees women the fundamental rights under Articles 14, 15, 19 and 21 the right to live with dignity, personal liberty, bodily integrity, sexual autonomy, right to reproductive choices, right to privacy, right to freedom of speech and expression. He held that the exemption of the husband on committal of such assault/rape cannot be so absolute that it becomes a licence for commission of a crime; in provocative words he stated, “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”, and refused to quash the case.
Earlier judgments
There have been other judgments which have already been a precursor to doing away with this exception. In Independent Thought vs Union of India (2017), the Supreme Court of India diluted it and removed the exception to marital rape to a wife not below 15 years and made it 18 years. The Court stated that this would not amount to removing the exception to marital rape for women above 18 years as that was not the case before it, but Justice Madan B. Lokur in similar words held, “... a rape is a rape... A rape that actually occurs cannot legislatively be simply wished away or legislatively denied as non-existent....” The Court held that a girl cannot be treated as a commodity having no say over her body or someone who has no right to deny sexual intercourse to her husband and that the human rights of a girl child are very much alive and kicking whether she is married or not.
Roots of the principle
The exception to marital rape in common law was due to the dictum by Chief Justice Matthew Hale of Britain in 1736 where he stated: “But 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 up herself in this kind unto her husband which she cannot retract.” The concept that by marriage, a woman gave up her body to the husband was accepted as an enduring principle of common law, due to which a husband could not be guilty of raping his wife. This was therefore translated into criminal codes, including the Indian Penal Code which India adopted.
This principle has now been completely abolished. In the United Kingdom, in 1991, the exception to marital rape was done away with in the case of R. vs R. The House of Lords held that where the common law rule no longer even remotely represents what is the true position of a wife in present-day society, the duty of the court is to take steps to alter the rule. The court held that a husband’s immunity as expounded by Chief Justice Matthew Hale no longer exists and took the view that the time had arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim. It held that it was the duty of the court to remove a common law fiction which had become anachronistic and offensive and that there was no justification for the marital exemption in rape.
That was in 1991, more than 30 years ago in the U.K. The Karnataka High Court took a similar view of its duties as a constitutional court in the present case and held that the exception to marital rape in Section 375 is regressive, wherein a woman is treated as a subordinate to the husband and against the constitutional guarantee of equality. Our courts have now truly pronounced the death knell of the marital rape exception.
Jayna Kothari is a Senior Advocate, Supreme Court of India
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