In 17th century England, Chief Justice Matthew Hale wrote, “the husband cannot be guilty of rape committed by himself upon 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.”
Hence came the validation of the concept of implied perpetual consent in law whereby, upon marriage, the wife automatically transfers her legal person to the husband and irrevocably consents to sex with her husband at all times, which consent lasts for the entire course of the marriage.
The construction of sex as a woman’s duty within marriage has been an unshakeable pillar of patriarchy. In Western or Indian tradition and law, with rare exceptions in matriarchal cultures, the woman forfeits her human right to her privacy, dignity, and the ownership of her body and her person once married.
The tenet that once married, a woman cedes her right to determine whether to yield sexually or not to her husband has been universally and unlawfully perpetuated.
Deeming a woman an adjunct to a man and as his property over whom he has a proprietary right, both law and convention have permitted men to force themselves sexually upon their wives against the latter’s will.
Sadly, even an enslaved woman had greater rights than a wife. The former could refuse her master ‘the last familiarity.’ But not so the wife.
A woman’s rights plainly cease at the altar of matrimony. In most countries, the heinous crime of rape was traditionally defined as forcible sexual intercourse by a male with a female without her consent, unless the woman is his wife.
The brutality underlying sex without consent injures her body and kills her spirit and psyche. That she has no recourse against such savagery adds insult to injury. That she is denied any protection against compulsory sex whereas an unmarried woman is not violates her human right to equal treatment in law.
The British transported the grossly unjust and discriminatory definition of rape to India via the Indian Penal Code (IPC) 1860, wherein the exception clause states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape. In October 2017, India’s Supreme Court increased the age to 18 to better align it with domestic violence and other Indian laws protecting women.
But India’s progress in removing the disparity between married and unmarried women in the laws governing rape has been slow. The criminalization of rape in marriage is yet to be validated not only by legislators and the judiciary but also by conservative sections of the populace, who view occurrences within marriage as the couple’s private non-justiciable business.
Legal scholars and women’s advocates in India reject the marital exemption principle and urge the criminalization of marital rape on the grounds that rape is rape, regardless of the relationship between the perpetrator and his victim. Even so, India has yet to join about 100 countries, ranging from Western democracies to Albania, Algeria, South Africa, Thailand, Philippines, Tunisia, and Turkey, which have either repealed marital rape exceptions or enacted fairer marital rape laws that do not distinguish between marital rape and all other rape and make marital rape a punishable offense.
Lack of will and action in respect of criminalizing marital rape stands in contrast to India’s progressive enactment of laws against dowry, female infanticide, and domestic violence. Painfully, the violently humiliating and psychologically fracturing act of marital rape remains unaddressed.
Legislators seemingly lack the sensitivity and spine to confront the socially delicate issue of conduct within marriage. They are reluctant to interfere with this self-serving male right to penetrate a wife to meet his sexual need.
Indian society puts a high premium on maleness and male sexual prowess. Male sterilization, for instance, had significantly contributed to the fall of Prime Minister Indira Gandhi’s government.
Themselves, women are divided and reluctant to report sexual violence in marriage, whether fearing further bodily harm by the husband and his family, or to preserve their reputation and dignity, or merely to protect their children.
Even educated and economically empowered women tend to shy away from making a fresh start in life, fearing adverse publicity, and preferring to live it out with an abusive husband. The Johny Depp case currently hogging global media attention exemplifies women’s helplessness in abusive settings, even in advanced nations.
Clearly, it does not help that the laws against marital rape are yet to be enacted in India. Some piecemeal reform has been attempted. In 1983, IPC was amended to criminalize spousal rape during the period of judicial separation. In 2005, the Protection of Women from Domestic Violence Act 2005 was passed, acknowledging marital rape as a form of domestic violence, but refraining from defining it as a crime.
As in the US, courts in India feel compelled to step in only when legislators fail to deliver on their duty to enact timely and clearly drafted laws. They are especially mindful of the necessity to uphold the integrity of the constitutionally guaranteed human rights and equal protection under law and justice, fundamental to India’s democracy.
Accordingly, Indian court rulings on criminalizing marital rape increasingly uphold a married woman’s human rights to her dignity and privacy and reject sexual violence against her as a valid presumption in law.
Expanding the scope of Article 21, India’s Supreme Court has held that marital exemption to rape violates a host of rights, including her right to privacy, bodily self-determination, and to human dignity, emanating from Article 21’s expression’ right to life and personal liberty’, and places the married woman in an unequal position to other women. Elsewhere, the court has acknowledged that every woman is entitled to sexual privacy, and it is not open to any and every person to violate her privacy as an when he wishes or pleases.
The most recent case before the Delhi High Court, therefore, had generated a high expectation that it would finally lead the justices to put to bed the unjust and controversial marital exemption clause. The petitioners in the case sought to strike down the exception, arguing that in addition to violating the right to dignity, it directly violates a woman’s right to privacy, choice, and bodily autonomy as recognized by the Supreme Court in its right to privacy judgment.
On May 11, 2022, a bench of two Justices – Rajiv Shakdher and C. Hari Shankar – issued the verdict in the four pleas seeking to criminalize marital rape. Alas! The ruling was divided. Justice Shakdher struck down Exception 2 of the Indian Penal Code’s Section 375 that decriminalizes rape within marriage, while Justice Shankar upheld its validity.
Although both Justices found forcible sex abhorrent, Justice Shankar held that marriage being a unique relationship with a legitimate expectation of sex may justify differential treatment of married women.
The split invited strong condemnation from women’s groups. The court’s failure to criminalize marital rape left many devastated who felt especially incensed at one of the two judges basically implying that marriage is a license for rape.
The inference that a married woman is the male’s property and nothing more, and her rights are inferior and unequal vis-à-vis unmarried and separated women, came across as especially demeaning and hurtful to women.
While there is despondency that the Delhi High Court had taken seven years to hear clubbed petitions seeking to criminalize marital rape, only to come up with a split verdict, there is solace that Justice Shakhder flatly dismissed the call for judicial self-restraint. Instead, he noted that shunning responsibility to decide what falls within the court’s ken, and leaving it to the Executive and/or the Legislature, would constitute abandonment of duty and the role which the Constitution has defined for the courts.
A sex worker, the enlightened justice pointed out, has been invested with the power to say no, by the law, but not a married woman. The conjugal expectation, he further stated, is tenable as long as it is not equated to an unfettered right to have sex without the wife’s consent, clearly asserting that sexual assault by the husband must be called out as rape.
The fractured verdict deeply hurt women who felt let down by one of the two Bench justices suggesting that an otherwise chargeable and criminal act is not so if the perpetrator is the husband. On the upside, the split verdict ensures that the Supreme Court will eventually be called upon to break the stalemate on appeal. Alternatively, India’s Parliament could feel compelled to step in with statutory reform.
Either way, it could signify the end of this unfinished battle for married women.