Jurisprudential Underpinnings of Marital Rape

Marital rape is not even a correct terminology under the current Indian law because sexual intercourse by a man with his own wife is not rape according to Exception 2 to s.375[1] of the Indian Penal Code 1860 (“IPC”). The essay attempts at providing a jurisprudential answer to “why marital rape shall be considered as an offence”. Rape as a general criminal offence exists in IPC but the Exception 2 to it marks crucial deviation, jurisprudentially and otherwise. Exception 2 says that sexual intercourse by a man with his “own wife” is not rape. The word “own” reflects the mentality of ownership of a man over his wife’s person. The mentality of treating wife as husband’s chattel has long been criticized in various jurisdictions but somehow this exception still exists. There was an amendment in the year 1972, which added §376 B to the IPC which criminalized sexual intercourse with a ‘wife living separately on a judicial decree’ and accounted it to be a rape. It unintentionally created a class between married woman living apart from the husband on a decree of judicial separation and married woman living with the husband, when both the women are rape victims. This also constitutes a violation of the right to equality before the law under article 14 of the Indian Constitution, 1950. Marital rape with wives above 15 years of age was not an offence under §375 up until very recently when the Supreme Court of India on 11.10.2017 declared that rape with minor wives under 18 years of age (above 15 years of age) also qualifies as rape[2]. Although a rape on minor girl was punishable under specific legislations like the Protection of Children from Sexual Offences Act and Prevention of Child Marriages Act. After this judgment, wives under and above 18 years of age groups have been treated as separate classes which is arbitrary and without a rational nexus to any object.[3] The author states that in light of the above explained recent development, the Exception 2 has become unconstitutional and invalid in light of article 14.

 How jurisprudence and legal philosophy can come to the rescue?

If the act is not criminalized, it exists as a license with the men and they can exercise their power to rape their wives and go punishment free under the immunity. Hohfeldian analysis of power and immunity can be as twisted as the patriarchal law makers want in the name of preserving societal framework. The existing legislation on rape has a utilitarian base. That gives the state a patriarchal figure rather than a libertarian. Professor Ronald Dworkin opposes this. In his Internal and External Preference theory, he counters Utilitarianism in a novel way. According to his theory, it can be said that the utilitarian question of “whether marital rape shall be punishable?” is a wrongfully framed question. Because those with internal preference (“Group A”) will say that it should be punished. But those with external preference (“Group B”) will not only say that it should not be punished but will also say that a wife should submit to the wishes of her husband. Therefore Group A, which is mostly the victims themselves, have one vote but Group B, who are the perpetrators and self proclaimed guards of morality, have two votes. Which means B is the majority whose will is most likely to prevail. Therefore, utilitarianism inadvertently supports majority rule which is not only emotionally unjust but theoretically unfair also. Ronald Dworkin’s theory suggests that we need to ask correct questions for bridging differences between majority and minority opinions. “Whether rape shall be punishable?” is the correct question and incorporates all kinds of rapes, irrespective of gender and marital status. It will not only protect married and unmarried females of all age groups, but will also make it a gender neutral offence.

It is the internal and external preference theory which provides the most logical reasoning behind advocating a gender neutral sexual assault provision. The same style of framing issues can be used to find out answers for other questions as well, like “Whether homosexuals have a right to practice sexuality?” instead of asking “whether § 377 of IPC[4] should continue criminalizing homosexual acts?”. The former way of asking the question gives both groups equal voting powers but the later promotes inequality. Group B will again say that not just they themselves want to refrain from such acts but also wish to prosecute others who choose to practice it.

The § 377 conundrum also does grave injustice to homosexual or heterosexual men who are actually the victims of sexual assaults. There is no law which protects a male victim of rape because in the current definition of rape under Indian law, only a woman can be the victim of rape. This is not merely the utilitarian- libertarian debate of ‘greater good- greater choice’ versus ‘free will of individual’. This is also not something which is for or against greater or less state interference. This is neither ‘against’ nor ‘for’ laissez faire. This is merely a fundamental argument, which in my opinion, is an extension of a very important principle of “hearing both the parties” and “equal bargaining power”.

The Supreme Court’s recent judgment which provided relief to child brides is highly appreciated and was long awaited, especially after what the same Court ruled in the year 2015. In 2015, a bench of two sitting judges, one of which was a female judge, Justice Banumathi, refused to entertain a petition claiming criminalization of marital rape. They held that it was not a petition in the nature of public interest but was espousal of an individual case.[5] In 2013, a special Court of Delhi held that “the parties being husband and wife, the sexual intercourse between the two does not come within the ambit of offence of rape as defined in section 375 of IPC even if the same was against the will and consent of the prosecutrix.”[6]

 “No is not merely a word, but a statement in itself!”- Amitabh Bachhan in the movie Pink

The problem lies with the Soft Nos in close corners of a house. We need to be empathetic while understanding a woman’s position who is dependent on his husband for her bread but is also at the same time not willing to satiate his sexual hunger for any reason, be it menstrual pain. The only reason she will not raise her voice is because she knows that there does not exist any remedy for her. A lot of NGOs working in the direction have already expressed their concern on how helpless they feel when a woman approaches them with a similar problem. All they can do is ask her to file a case for maintenance on grounds of cruelty. But again, the degree of cruelty in sexual assault bears high trauma and cannot be equated with other physical assault.

Possibility of ten fake cases cannot be made the reason to hamper justice to one victim.

Most lawyers argue that it will be harder to prove commission of this offence when it occurs between married couples behind closed doors. But the same logic applies to all rapes which occur at secluded places!

Be it the reports by Justice Verma, 2012 or Law Commission, 2000 or the United Nations, the issue has been raised many times. Drafting legislation with a prior understanding of the jurisprudential underpinnings is a smart task and the writer hopes that our legislatures will do the same in future. The Supreme Court of India has dismissed a petition in the nature of public interest on 2^nd February 2018 where the petitioner argued that offences like rape, sexual harassment, stalking and outraging modesty shall be made gender neutral. The petition was dismissed on account of it being ‘imaginative’.[7]  A petition on the issue[8] has been heard in the High Court of Delhi on the 17th January, 2018 and it will be interesting to witness how Union of India (Respondents) responds on the ‘legitimacy of marital rape’.