Section 375 of the Indian Penal Code, 1860 defines rape as sexual intercourse with a woman when there is a lack of consent on her part. Exception 2 attached to this provision, however, states that non-consensual sexual intercourse by a man with his wife, the wife not being under 15 years of age, does not amount to rape.
This basically implies that a married man who forces himself upon his unwilling wife cannot be prosecuted for the offence of rape provided that she is at least 15 years old.
With the wave of feminism engulfing India, the discussions around the criminalisation of marital rape and its possible impact have become ubiquitous.
Recently, while addressing the inaugural session of the National Conference on Transformative Constitutionalism in India, the former Chief Justice of India Deepak Misra opined that marital rape should not be criminalised in the country.
He stated, “I do not think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values. We still respect family background and many other facets.”
Even the Union of India, in its submission to the Delhi High Court, stated that criminalising marital rape would undermine the institution of marriage andcould potentially be used to harass husbands. These statements have been met with both nods and scathing criticism.
Several citizens of the country have knocked on the doors of the Supreme Court and various High Courts challenging this Victorian law that deems the act of a man raping his wife as innocent and unpunishable.
Against this backdrop, it is important to pick out and analyse the previous Supreme Court judgements that will have a bearing upon the constitutionality of Exception 2 to Section 375 of the Indian Penal Code, 1860 which decriminalises marital rape.
1. Joseph Shine vs Union of India: In this landmark judgement the Supreme Court decriminalised Section 497 of the Indian Penal Code which penalised adultery.
The Court held that Section 497 is unconstitutional as it is built upon the patriarchal notion that a wife is her husband’s chattel and adultery is the highest possible invasion of the husband’s property. It does not regard both sexes as equals in a marriage but proceeds upon the subjugation of the wife to the will of her husband. This inhuman treatment meted out to women by conceiving them as objects under their husband’s ownership is in violation of Part III of the Constitution of India. The Court concluded that any legislation that enables a husband to own his wife’s sexual agency attracts the wrath of the Constitution.
Decriminalisation of marital rape is built upon the same misogynistic premise. It deems that the wife is her husband’s property which he can sexually access at his disposal, irrespective of her consent.[1]Under the existing law, women, who are guaranteed equal constitutional protection as men, are treated as objects devoid of dignity and human spirit. Thus, the decision of the Supreme Court in Joseph Shine raises severe doubts upon the constitutionality of the decriminalisation of marital rape.
(The writer is a student of B.A.LL.B at Symbiosis Law School, Pune and the views expressed in the article are his own.)