Victorian morality where a woman gave irrevocable, inexorable consent in marriage continues to be preserved in the statute books in India. A husband cannot be prosecuted for the rape of his own wife. Section 375 of the Indian Penal Code lays down the exception, “Sexual intercourse by a man with his own wife” is not rape. The exception in law has its roots in the concept of implied consent by a woman given in a marriage and a grim reminder of the times in England when women were considered mere “chattels” and could not even own property.
The remnants of Victorian morality continue to survive in the Indian statute books. The Hale’s law of England, laid down by Sir Mathew Hale, the Chief Justice of England (1671-1676), said that a man cannot be booked for raping his wife. This rule made it legally impossible for a husband to be prosecuted for the rape of his wife. After fierce opposition, the rule was struck down in England about three decades ago in the historic case of R v R (1991) after surviving for more than three hundred years. But the colonial shadows of it continue to survive in India.
The Supreme Court of India shall have the final word on whether rape within marriages should be criminalised in India. A special bench is expected to take up the matter for final argument on March 21. After a split verdict from the Delhi High Court, multiple petitions have lined up at the SC, seeking the criminalisation of marital rape. The hopes are pinned on the apex court as the Centre during the hearing in the Delhi High Court opposed the criminalisation of marital rape, apprehending a “breakdown of families” and “widespread misuse like 498A”. The position is not new, even the earlier UPA 2 did not implement the Justice Verma committee recommendations that advised criminalisation of marital rape in India. The commission was formed in the aftermath of the Nirbhaya case.
No one denies the existence of rape within marriages. In fact, there are abundant statistics to prove the presence of physical, emotional, and mental assault within marriages. Despite the acknowledgement of this stinging reality, there has been fierce opposition from certain quarters and reluctance from the government to do away with the exception that grants immunity to a husband from being prosecuted for the rape of his wife.
The opposition to criminalisation of marital rape can be broadly divided into two parts. The first is more in principle. It is argued that criminalisation is against the very idea of marriage where consent to intercourse is implied and perpetual, a component that cannot be taken away within the institution. The puritanical perspective shall also have us believe that such interference in bedrooms shall lead to the breakdown of families. These ideological battles have been fought by feminists in the UK, the US and many other parts of the world. The answer to such apprehensions is plain and simple: the institution of family cannot rest on the foundation of abuse and violence, it must be of dignity and respect. There is nothing “personal” about the personal space.
The second limb of the opposition is a rather serious one. The provision of marital rape can be used as a tool for harassment like the anti-dowry provision section 498A has been rampantly misused. Upon a complaint of rape, the arrest of the accused is almost certain and the fear of revenge litigation in marriages gone sour cannot be brushed away. Only a well-drafted special legislation can take care of the procedural concerns. While the absence of any witness is not impossible in ordinary cases of rape, in marital rapes it’s almost certain that there are unlikely to be any witnesses to the crime.
Can sheer procedural or evidentiary concerns impede law from recognising a heinous offence? Sure, there are challenges and equal regard should be paid to the right of the accused, but the procedural concerns cannot overtake the principled approach that the law must take. The slow and tardy pace of litigation in India, corruption and inefficiency within the police machinery has dampened the spirit of many other laws in the statute books. False cases and allegations can be made against anyone for any offence. Procedural concerns should not be used as a garb to assert the misogynist notion that women lie or are unreliable. The real concern of safeguarding the rights of the accused should be met with legislative expertise.
While the courts can tread upon the path of striking down the exception under the Indian Penal Code, only a smart legislative approach can address the evidentiary and procedural concerns.
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