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Marital Rape: Marriage Or Rape; Legal Or Illegal?

1. Section 40 of the Indian Penal Code, 1860 (the IPC or the Code) defines "offence". It provides that, "except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word "offence" denotes a thing made punishable by this Code". Therefore, something which is punishable by IPC is an "offence" within the meaning of Section 40 thereof.

2. This article is not concerned with exceptions of Chapters and sections mentioned in clauses 2 and 3 of Section 40.

3. Section 375 of IPC defines rape. Section 376 of IPC provides punishment for rape. Thus, rape being punishable by Code is an "offence", within the meaning of Section 40 thereof.

4. Exception 2 to Section 375 provides that sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Since this article is not concerned with an underage wife, one can simply state the exception 2 to Section 375 to mean that sexual intercourse or sexual acts by a man with his own wife, is NOT rape, irrespective of age issue, which has otherwise been matter of consideration by Hon'ble Supreme Court in the case of Independent Thought.

5. Thus, the thing covered by exception 2 to Section 375 is not an "offence" under Section 40.

6. Certain Writ Petitions have been filed before Delhi High Court in the lead case of RIT Foundation v. Union of India and similar Petitions challenging the aforesaid exception 2 to Section 375 as being unconstitutional and seeking a declaration to that effect.

7. An endeavour is being made in this article to demonstrate that aforesaid Petitions are neither maintainable in law nor otherwise tenable on merits. It may be stated that, though, if a Writ Petition is not maintainable, to start with, there is no occasion to go into merits of the matter. Nonetheless, merits of the matter are independently examined in this article, to see the basic merit of the matter, from an alternative point of scenario.

8. It is possible for an aggrieved party or for a public spirited individual or an organization to file a Writ Petition, challenging the validity or constitutionality of a provision. Such a Petition would be a Petition, such as the one challenging Section 377 of IPC. The underlying premise of such challenge is that certain provision of criminal law has unnecessarily criminalized something, which ought not to be a crime.

9. In such a challenge, it is open for a Constitutional Court under Article 226 of the Constitution to strike down the provision challenged or read down the same, to save it from the mounted challenge on the ground that the same is unconstitutional and hence invalid.

10. However, a question arises in the present context as to whether a Petition can be filed challenging something which is an exception to a crime and seek deletion thereof so that the excepted things becomes a crime. In other words, would a Writ Petition seeking to criminalized a thing, which is so far not a crime, is maintainable in law.

11. In the considered view of the author, such a Writ Petition by its very nature is not maintainable in law, speaking conceptually.

12. Declaration of something as a crime or an "offence" is a matter, which solely rests in the domain of legislature. It is entirely up to the legislature, whether to criminalize something or not. If the legislature chooses not to criminalize something, no writ of mandamus would lie against it to command it to criminalize something or otherwise criminalize it by way of a declaration or like.

13. For instance, begging is not a crime in India. A Writ Petition cannot be filed seeking a declaration that begging be made into a crime punishable by law. It is entirely up to the legislature whether to criminalize it or not.

14. However, once criminalized, it is open to Constitutional Court to examine whether such criminalization is good or bad in law or constitutional or unconstitutional, which is part and parcel of power of judicial review vested in the judiciary.

15. As happened in the case of begging itself, which was criminalized by a particularly legislation, which upon being challenged was struck down by Delhi High Court as in the case of Judgment of Justice Gita Mittal of Delhi High Court in this regard.

16. But is it not possible the other way around that someone get something declared as a crime by a Court of law, which otherwise is not a crime. This is not only unheard of, but also conceptually inconceivable and constitutionally impermissible.

17. Therefore, on the face of it, the Writ Petitions filed before Delhi High Court are not maintainable in law and ought to be dismissed without examining merits of the matter.

18. Assuming for the sake of arguments, while contending to the contrary, such Writ Petitions are assumed to be maintainable, nonetheless such Writ Petitions have no merits in it. This is for innumerable reasons. Some of these reasons are discussed now.

19. Firstly, Indian Penal Code is a criminal code and ought to be interpreted strictly. Even on interpretation, if possibly, two views are possible, whether an act or omission is a crime or not, that view must prevail, which holds that the act or omission complained of is not a crime. The principle of strict construction applies with much force and vigor in criminal law than in any other law. After all, criminal law affects the life and liberty of people.

20. Secondly, exception 2 to Section 375 is an exception and not an exemption. The difference between exception and exemption is a qualitative difference of nature and not quantitative difference of degree. An exception is something which is not part of the Rule. An exemption is something which is part of the Rule but excluded from the Rule for an artificial reason.

21. Thirdly, rape is primarily defined as an act of forcible intercourse by a man either against the `will' of the woman or against her `consent'.

The moment a man and woman enters into the contract of matrimony, there is no occasion to say that any forcible intercourse thereafter, by the man is against the `will' of the woman. In other words, the very fact that the woman has entered into matrimony with the man, converts them into wife and husband relationship borne out of wedlock. In such a relationship of matrimony, there is no question of anything happening against the `will' of the wife in the legal sense inasmuch as by having voluntarily agreed to get married, the woman who has now become wife has given her `will'. This appears on first principle.

This in any case is also supported by Section 376B. Section 376B deals with an "offence" of sexual intercourse by a husband upon his wife during separation. Section 376B creates an "offence" only if the act complained of is, without her `consent'. Section 376B does not get triggered if it against the `will' of the wife. In other words, law itself in the shape of Section 376B recognizes that the `will' of the wife is present in a marital relationship and the only issue is about `consent'.

22. Insofar as the issue of act of intercourse, without `consent' is concerned, it needs careful examination as to whether such `consent' of wife is needed before every act of intercourse or there is something in the very marital relationship itself, which takes care of the same expressly or impliedly or otherwise.

23. The very idea of the marriage is to consume it. Failure to consume the marriage can lead to dissolution of marriage.

24. It is to be noted that either of the parties to a marriage can upon desertion by the other party apply for restitution of conjugal rights. The very idea of restitution of conjugal rights as a legal right, coupled with a remedy enforceable at law, is premised, irrespective of the consent of the parties. So long as there is a right, there is a remedy. So long as that right is there, remedy can be enforced, without consent of the other party. This would demonstrate that consent is not material for restitution of conjugal rights in matrimonial relationship.

25. Further, marriage as a relationship is based on the give and take relationship of the parties. Traditionally speaking, in a marital relationship, man provides for the needs of woman in terms of resources for food, clothing and shelter and woman in turn provides for man's need for companionship. This relationship of give and take is not based upon consent of either party. There is no one to one co-relationship between one party providing for something in order to get something in return from another party. By its very nature the relationship is strong yet subtle, continuing yet renewing, contractual yet unlike any other contract.

26. Even though, the traditional basis of marital relationship has undergone a sea change, the underlying foundation or premise remains the same. It is something like, more the things changes, more they remain the same. Even though, there may have been cases of tectonic shift to the extent that the woman becomes bread earner and man takes care of the home, nonetheless, the fundamental premise remain the same i.e. civil union of opposite sexes. In any case, predominantly the traditional method, manner of marriage remains the same, be it as urban phenomena or as a rural pastime.

27. Therefore, it appears that the relationship is such that there is no requirement of `consent' before every act of intercourse, though it may be utopian in an imaginary evolved society, which will never exist.

28. Even assuming that something is forcible and without consent (in the non-legal sense), it may be anything but rape. The very idea of marital rape is misnomer in itself. There is either a marriage or a rape. It cannot be both, as the law stands. It cannot also be both theologically or philosophically, even if the law is to be altered.

29. In fact, take a hypothetical situation that there is a separate non-descript "offence" created by legislature dealing with the act of forcible intercourse between married parties and the aforesaid exception 2 to Section 375 is absent from the statute book, it would still be open for an aggrieved party (husband) to challenge the same, seeking decriminalization of the same on any of the aforesaid grounds or on host of other grounds and such challenge may be successful, both logically and legally.

30. At this stage, the judgment of Hon'ble Supreme Court in the case of Independent Thought v. Union of India and Others - (2017) 10 SCC 800 is required to be referred to. The said judgment deals with Exception 2 to Section 376, insofar as it deals with sexual intercourse by a man with his own wife, aged between 15 and 18 years. The said judgment struck down aforesaid Exception 2 to Section 376, insofar as aforesaid age bracket is concerned.

31. Certain important things about above judgment are, firstly, the judgment makes it very clear that it is not dealing with the issue of marital rape of a woman, who is 18 years of age and above, since that issue was not before the Supreme Court. The judgment explicitly clarifies that the issue of marital rape is not even touched collaterally (Para 2 of Reported Judgment, also see Para 114 and Para 196). Secondly, the judgment confirms that Courts cannot create an offence (Para 190 of the Reported Judgment). Thirdly, the Court clearly holds that it is not creating any new offence (Para 191 to 194 of the Reported Judgment). Fourthly, at the cost of repetition, the Court observes that it is not commenting upon the issue of marital rape, one way or the other (Para 199 of the Reported Judgment). Fifthly, the judgment recognizes that historically speaking, even under English law, in spite of there being no statutory exception like Exception 2 to Section 376, nonetheless by a principle known as Hale's principle named after Chief Justice of England, Sir Mathew Hale, recognized that a husband cannot be said to be guilty of raping his own wife, by laying down as below:

"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 aforesaid principle was followed in England for many years for more than two centuries. This was based on the proposition that the wife gives up her body to her husband at the time of marriage. It was also presumed that upon marriage, a woman had given her irrevocable consent to have sexual intercourse with her husband.

32. At first blush, it appears as if there is no difference between the issue before the Supreme Court in Independent Thought and in the challenge to marital rape. The difference between the two is also obvious in one sense i.e. that Independent Thought itself recognizes the same. However, on a proper and deeper analysis, it would be revealed that there is a qualitative difference between the two, which though subtle is yet perceptible and of course logical.

33. Insofar as the right of privacy claimed by the Petitioner's before the Delhi High Court is concerned, the said right, which is held to be fundamental right, as part of Article 21, is a right against the State. The said right, in no manner is against the husband. It goes without saying that State is not husband and equally, husband is not State. Therefore, question of claiming any fundamental right of privacy against the husband does not arise.

34. Fundamentally speaking, there is no compulsion to marry, whether statutorily or contractually. It is a voluntary union of opposite sexes. In the absence of any compulsion, question of claiming any right arising out of such voluntary union against the other partner in the relationship does not arise.

35. Matter can also be looked at from another angle i.e. what about husband's right of privacy. Right of privacy is certainly not gender biased. If right of privacy is gender neutral, would not a husband have a fundamental right to privacy in his marital relationship? Can the husband not claim that State has no business to enter into his bedroom armed with a penal stick in its hand, more so, when the relationship between him and his wife is, contractual, mutual and voluntary. The very nature of the relationship speaks for itself.

36. In fine, without questioning the institution of marriage, criminalizing so called marital rape, is nothing but stark illegality, absurdity apart and in any case unconstitutional.

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