Marital Rape and Perpetual Consent: India's One Step Forward Two Steps Back Policy
On 23rd August 2021, the Chhattisgarh High Court, in the case of Dilip Pandey & Ors. v. State of Chhattisgarh, issued a controversial judgement stating that sexual intercourse between a husband and wife, even when non-consensual or forced, does not constitute rape.
India’s conservative views on marriage have permeated the legal system and bridged the gap between a regressive sense of morality and the word of law. The Indian Penal Code stands testament to this fact. Despite holding non-consensual intercourse as rape under Section 375, an explicit exemption is granted to the same, provided the parties to this otherwise criminal act are husband and wife. This Section operates on a primitive and erroneous presumption that through the act of marriage, the wife provides perpetual consent for sexual relations to her husband.
Violation of the Equal Protection Articles
Article 14 of the Indian Constitution guarantees to every person equality before law and equal protection under law. Furthermore, Article 15 establishes thatthere should not be any discrimination on the basis of religion, caste, sex, race or place of birth. These provisions emphasize the constitutional intent to achieve equality among the population, after centuries of religious and sexual discrimination.
Addressing the implications of this law for minors, – India being home to the largest number of child brides on the planet – the Supreme Court amended the law holding that Section 375(2) should not be used to protect those engaging in non-consensual intercourse with wedded minors. On October 11, 2017, the Supreme Court of India issued a landmark judgment recognizing every girl’s right to bodily integrity, and penalizing rape within child marriage. In Independent Thought v. Union of India, the highest court of India articulated for the first time the government’s constitutional and human rights obligation to address child marriage and respect the rights of married girls.
In State of W. Bengal v. Anwar Ali Sarkar, the Supreme Court determined that Article 14 does not presume absolute equality, but equality between persons similarly situated. Under Article 14, it is necessary that all litigants who are similarly situated are able to avail themselves of the same procedural rights with like protection and without discrimination.Victims of marital rape are similarly situated in their suffering, but the law institutes a demarcation in its effect, subject to these victims becoming legal adults, clearly engaging in an act that violates the equal rights granted by the Constitution.
Although Article 14 provides for the creation of certain classifications, the classification must possess intelligible differentia – differences that distinguish those grouped together from others – and if the same is done without a reasonable basis, the equal protection clause stands violated. These classifications essentially mean that although discrimination is not permitted under the constitution, classifications can be made and separate laws may be instituted on their bases if it can be proven that such classification is founded off of an intelligible differentia and a rational nexus – a rational relation between the classification made and the object sought to be achieved by such Act.
Here, there is no justifiable basis for the classification, as the law currently states that depending on the mere attainment of the majority age, diametrically opposing legal repercussions would be extended to those who rape their wives, a stance that runs contrary to the fundamental tenets of Article 14.
Even prior to this judgement, the Constitution allowed Section 375 to co-exist with Article 14, placing women raped by their husbands in a disadvantaged position when compared to victims of non-marital rape by denying them equal protection under law, solely on the basis of their marital status. This runs counter to the Union of India judgment, where the Apex Court stated that classifications made under law must possess a rational nexus to the object that is sought to be achieved by such classification. Here, this requirement is explicitly rejected as no reasonable nexus can be construed to be existing between the classification and its causal objective.
Article 21 Violation
Article 21 enshrines the constitutionally envisaged Right to life. The Article states that ‘no person shall be deprived of his life or personal liberty except according to a procedure established by law.’ In the present case, this right stands violated by Section 375’s Exception clause. The Right to privacy was determined to constitute an undeniable aspect of this right in Justice K.S. Puttaswamy (Retd.) v. Union of India. The Court held that a life with dignity is one where there exists a right to autonomy and the ability to make decisions about one’s life. “Decisional Privacy” was also acknowledged as the personal right to make intimate decisions pertaining to one’s sexual nature and engagement in intimate relations. This right is invalidated when it comes to married women, with this most intimate expression of bodily autonomy rejected by the law as it presently stands.
Judicial Approach and the Hypocritical Pretense of Marriage Stance
On 30th July 2021, the Kerala High Court held that marital rape is an adequate ground for divorce. The Court stated that acts such as marital rape – infringing upon the individual autonomy and privacy of the wife – result in crueltyand, thus, form a valid ground for divorce as per Section 13 of the Hindu Marriage Act and Section 27 of the Special Marriage Act. The Court, however, refrained from assigning even any implied criminality to marital rape by constituting it as a separate ground for divorce. The judgement constituted a middle ground of sortsthat, while recognising the act of marital rape as cruelty, still failed to consider it as a criminal offence on its own.
Pretense of Marriage:
On 3rd August 2021, The Madhya Pradesh High Court, in the case of Abhishek Chouhan v. State of MP, reiterated the illegality of sexual relations under the pretext of marriage, categorising the same as rape.
However, Section 375 – which is to be strictly interpreted – enumeratesseveral definitions of rape with regard to consent and none of the descriptions include consent procured under the pretence of marriage. Included in S. 375 is an exhaustive list of scenarios where consent would be deemed to be vitiated, yet fails to account for the issue of false pretense of marriage.
These contradictory laws – considering marital rape as a non-crime and at the same time non-consensual intercourse as rape – highlight the anachronistic views of rape in Indian law. The message sent is that it is against societal moral beliefs to assume that women would engage in premarital intercourse, unless they are ‘lured’ with the promise of marriage.
Conclusion
The stance by J. Chandravanshi in the Dilip Pandey case is representative of how far the judiciary has parted from the path of equity and justice, by explicitly stating that non-consensual intercourse by a husband with his wife, even if by done by force, does not constitute rape. The archaic law that came into existence when wives were considered as the husband’s property, and thus devoid of rights, has dug its claws into society and survived to this day with State support – who claim that the same cannot be criminalized as that could “destabilize the institution of marriage.”Laws that govern society must in turn grow with society. Thus, this overtly misogynistic law must be repealed and the act of marital rape must be recognised as every bit as vile and monstrous as any other form of rape.
Akhil Satheesh is currently pursuing an LLM degree in Comparative and International Dispute Resolution at Queen Mary University of London, England. Akhil has a strong academic interest in Intellectual Property, Human Rights, International Commercial Arbitration, and Alternative Dispute Resolution Laws.
Megha Thara Prasad is currently pursuing a specialized LLM degree at Queen Mary University of London, England. She has a strong academic background in Alternative Dispute Resolution, with an interest in Arbitration, Negotiation, Company Law, and Contract Law.