A Criminal Obligation: Marital Rape and its Premise

Abstract

This article traces the trajectory of a patriarchal legislation- the law that exempts a husband from conviction of rape committed upon his wife. The legislation, though a colonial legacy, is being erased from the law books of the West, but India still awaits the washing off of this stain from its Penal Code. The article maps a history of pedestalisation and ghettoization of women inside the precincts of matrimony, against which the Petitioners, perplexed by the split verdict of the Delhi High Court, are now knocking at the gates of the Apex Court.

Introduction

The split verdict pronounced in the marital rape exception (“MRE” hereinafter) case offers a glimmer of hope for the vindication of women’s rights in the fabric of conjugal ties. The judgement of itself reads like poetry while presenting to the audience two disparate views and the conflict it harbours between an all-embracing future and the past upholding archaic structures that seemingly cement our society for some. The 393 pager judgement, the appeal of which lies in the Apex Court, expectantly awaits its course that will ultimately break ground regarding the exercise of women’s liberty and what the society makes out of it.

State of Play

The demurral bubbling around striking down the MRE provision, a lesser liberalised borrowing from our colonisers, has a bearing on our socio-cultural and political fabric. It gives asylum to the potentiality of warping the undertones of patriarchy our civilisation seeks to uphold. Buckling down to the dissension recorded as regards defiance of Article 15 of the Constitution harks back to the age-old sanctitude accorded to marriage.

The grant of impunity to an offender by the agency of his stationing in matrimony invited the ire of one-half of the bench of the Delhi High Court. The predisposition of the other half of the bench towards the notion of ‘legitimate expectation of sex within marriage’ arose from under the folds of intelligible differentia nested in Article 14. It was the age-old piety associated with the union of two individuals, among other things, that escorted the defence to argue against striking down the MRE.

Reliance on Coverture

Our legislation being cut out from the heart of the Common Law bore signs and symptoms of the English Common Law doctrine, namely the doctrine of coverture, which identified a wife and a husband as one single unit and outrightly rejected the distinctiveness of a woman divorced from her role as a wife.

The law on adultery- the erstwhile section 497 of the Indian Penal Code- which has recently been held to be not an offence anymore in Joseph Shine v. Union of India[1], had the Doctrine of Coverture at its very foundation. The word ‘adultery’ means ‘an action which corrupts’; and the offence was committed by a man, on another man, when the former had sexual relations with the wife of the latter. The wife being a chattel of the husband, could not have given consent to the relationship. The moral corruptness of the provision lay in its dehumanisation of the wife, with the offence of adultery being against not the body of the wife, but against the property of the husband. The Doctrine of Coverture, thus leading to the subsumption and erasure of the wife’s identity, has given rise to the supposed rationale behind MRE. While under the law against adultery, the husband had a right to protect his wife’s sexual resource from being exploited by another man, the MRE gave him an exclusive and absolute right upon the sexual resource that the wife’s body was.

To wit, some judgements laid below stand as a manifestation of the aforementioned doctrine. They resound the dictate of the entrenched patriarchy.

The jurisprudence laid down in the case of Yusuf Abdul Aziz v. the State of Bombay, 1954 SCR 930, which no longer holds authority, denigrated women to the status of being mere chattels of their husbands by divesting them of their individuality and basing their judgement on their incapacity to flout the loyalty feature required in a union.

Harvinder Kaur’s case decried the operation of Constitutional Law within the bounds of a marital relationship and denounced it for being a ‘ruthless destroyer of the marriage institution and all that it stands for’. It disregarded the application of Article 21 or Article 14 in the private space of married life.

As we see it, the elimination of adultery as an offence in Joseph Shine (supra) sounded the death knell of the MRE; because when the rational basis of adultery being an offence against the husband has been denounced by the Apex Court, it recognises the autonomy of a woman over her own body, be her a feme solo or a feme covert. Joseph Shine (supra) did not merely decriminalise sexual fluidity, it dissolved the husband’s absolute right over the wife’s body. Therefore, when adultery has been bid goodbye to, it only makes sense that MRE must follow suit.

The Paternalistic Hypocrisy

The Court in C.B. Muthamma v. Union of India & Ors., 1979 S.C. 1868, patronised women by adopting a protectionist approach and holing them under the header of “gentler of the species”, thereby ending up essentializing the theory of the natural difference and reinforcing their subordinate status by euphemising ‘differential’ treatment as ‘preferential’ treatment.

Appropos the paramountcy of marriage as held by our courts, the wrangling around the extension of discrimination (couched in the institution of marriage) against women can be gleaned from Air India v. Nergesh Meerza, (1981) 4 SCC 335: 1981 SCC (L&S) 599. The Court dumped the burden of rearing and nourishing the household onto women by upholding the airlines’ restrictive regulations paring the avenues for female flight attendants to climb up the ladder, thereby lending a hand to perpetuate gendered stereotypes and the concomitant roles dictated to them. The authority factored in marital status as a point of differentiation between the classes before doling out benefits.

In K. Shanmukhan v. G. Sarojini, 1981 Cr L.J. 830 (Ker), the Court turned down the challenge to Section 124(b) of the Civil Procedure Code while constructing marital status as the nub of classification between married and divorced women. It precluded married women from demanding maintenance when not sharing a residence with their partner and aided in perpetuating discrimination based on assumptions. The Court, while disregarding the reasonable classification of economic dependency and economic need, which situates married and divorced women similarly, justified treating the two classes differently in matters of maintenance on the basis of the accepted differences.[2]

The Judiciary in Leela vs the State Of Kerala, 2004 (102) FLR 207, yet again refused to acknowledge women’s agency and subtly, despite recognising the changing mores surrounding women’s empowerment, deprived them of their right to practice their choice. Assuming a paternalistic role and reflecting its perception of women being the weaker sex, the Court justified the Parliament’s enactment of a specific provision in the Factories Act that disallowed women to work in the factories between 7 p.m. and 6 a.m., thereby driving the Court to protect them against the hazardous jobs and to save them in spheres where the Parliament considered it necessary.

The reasoning employed to decide the slew of cases above speaks volumes of the apprehension harboured by the Courts to give much agency to a woman as an individual and the Court’s adoption of a paternalistic role to justify its stance that a woman needs saving.

A Transformative Shift

To dig out the annals of our post-colonial past, we can catch sight of instances acknowledging a woman’s individuality isolated from her obligatory role as a wife.[3] A Report of the Sub-Committee, part of the National Planning Committee Series (1947) in its chapter titled Women’s Role in Planned Economy, while being conscious of the ills afflicting the institution of marriage, emphatically recommended the trade unions accept an individual as a unit while imploring them to deploy the principle of equality between men and women.[4] The report took note of the forces working to subdue the authority of women and dragging out their dependency on men. The framers vetoed the hold that marriage commanded and picketed its belief that matrimony shall not be treated as a condition precedent to the fuller realisation of equal civic status.[5]

An attempt to rectify or compensate for the exclusion of women in their claims of equality and their subjection seems to be afoot, as Courts, while taking note of foreign jurisprudence plying empowering measures to put in place non-discrimination, are bringing into play the same liberalised principles to avow enfranchisement of Indian women.

Of late, Judges in matters establishing equal footing between the sexes have helmed towards a more transformative approach while interpreting Article 15, bringing to the fore and empowering the subverted spirit of women.

While some of the Courts took a blinkered approach to the reading of Article 15, some benches have risen above and beyond their charted waters and settled upon the unemployment of Article 15 as a tool to discriminate against women.[6]

Sri Mahadeb Jiew and Anr. v. Dr B.B. Sen, Dattatraya Motiram More v. the State of Bombay, among others, bears considerable weight for taking a substantial approach to equality while interpreting Article 15, ergo, eschewing legal oppression of women within the bounds created and raised by societal and institutional structures.

Roping in American jurisprudence to steer us out of the passé perception of the holiness of marriage and the associated worthiness a woman derives from it, the case of City of Los Angeles, Department of Water & Power v. Marie Manhart [55 L Ed 2d 657: 435 US 702 (1978)] heads on this accepted belief by stating:

“It is now well recognized that employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females. Myths and purely habitual assumptions about a woman’s inability to perform certain kinds of work are no longer acceptable reasons for refusing to employ qualified individuals, or for paying them less… The question, therefore, is whether the existence or non-existence of ‘discrimination’ is to be determined by comparison of class characteristics or individual characteristics. A ‘stereotyped’ answer to that question may not be the same as the answer that the language and purpose of the statute command.

* * *

Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes. Practices that classify employees in terms of religion, race, or sex tend to preserve traditional assumptions about groups rather than thoughtful scrutiny of individuals.”

Similarly, the UK House of Lords demolished the 150 year-old “common law fiction” of the MRE in R v. R. [1991] UKHL 12, expressing remorse at how the antique monstrosity of MRE had survived for this long:

“For over 150 years after the publication of Hale’s work there appears to have been no reported case in which judicial consideration was given to his proposition. The first such case was R v Clarence (1888) 22 QBD 23, [1886(90] All ER Rep 133, to which I shall refer later. It may be taken that the proposition was generally regarded as an accurate statement of the common law of England. The common law is, however, capable of evolving in the light of changing social, economic and cultural developments. Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated. Since then the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail …[O]ne of the most important changes is that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Hale’s proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable….

On grounds of principle there is now no justification for the marital exception in rape.

Hence, Western common law jurisdictions have, as early as the 20th century, begun erasing their history of Victorian Paternalism and blatant patriarchy by way of judicial reform. It is ironic that we, who borrowed these concepts from their jurisprudence, are playing truant in following suit.

However, it would be wrong to allege that no progress has been made so far on the Indian front.

Divagating from the stereotype-based justification of protective discrimination, the Court in Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1, instanced ‘Romantic Paternalism’ to hold a mirror up to the State and enjoined it to adhere to the two-pronged scrutiny before sustaining protective discrimination. The judiciary campaigned against vouchsafing legislation that seemed benign and came off as endeavouring to achieve parity, nonetheless ending up buttressing gendered social rules. The Court employed the following language to further its cause of mitigating discrimination:

“46. It is to be borne in mind that legislations with pronounced “protective discrimination” aims, such as this one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.

47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling State purpose. Heightened level of scrutiny is the normative threshold for judicial review in such cases.”

Independent Thought of India, while giving a wide berth to the contention of the general question of marital rape of an adult woman, broached the liberalised standing taken by the Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired). It took note of the withdrawal of the immunity granted to husbands under the doctrine of coverture in most major jurisdictions. To reproduce the relevant paras from the judgement and throw light on the reformist outlook that the report sought to conjure:

73 … In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared, ‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband’. [R. v. R., (1992) 1 AC 599, p. 616 : (1991) 3 WLR 767 : (1991) 4 All ER 481 at p. 484 (HL)]

74. Our view is supported by the judgment of the European Commission of Human Rights in C.R. v. United Kingdom [C.R. v. United Kingdom, ECHR, Ser. A. No. 335-C (1995) : (1995) 21 EHRR 363] which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that this change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom. This was given statutory recognition in the Criminal Justice and Public Order Act, 1994.”

The pronouncement in Yusuf Abdul Aziz v. the State of Bombay, 1954 SCR 930 was toppled over in Joseph Shine v. Union of India, 2018, wherein the Court moored the spotlight on the State, making it hark back to its legitimate interest in regulating many aspects of marriage. Albeit concerning Section 497 of the Indian Penal Code, 1897, the judiciary, while hinging the ratio on autonomy over one’s sexuality, laid down the following:

“61…The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity. Section 497 denies the individual identity of a married woman, based on age-old societal stereotypes which characterised women as the property of their spouse. It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’.”

The importance of acknowledging the impact of recognition or invisibilising differences on the lives of women was foregrounded in this case.

“14….The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”.”

The Court downright rejected the stereotype-based justification of a woman serving as the husband’s property as failing to stand the test inherent in Article 14.

The unifying ideas in the precedents laid above knock off discriminatory legislation that compartmentalises classes based on stereotypes. They exhort us to harness a transformative approach while reading into legislations and probing into their nature, whether it is prejudiced or not. The importance of the disparate impact test gets magnified to study the law’s systemic and institutional effects on the benefactors. Before birthing any law for the people in a society riven with stereotypes, its resonance and not the intent needs to be taken into account to echo the waves of change and social justice.

Though the Indian social fabric is intricate, it is not fragile. It is resilient to the winds of time, and that is how it has emerged as the longest surviving living civilization. It is probably high time, and yet not too late, to decry the contagions we imbibed in the process of colonisation but could not rid ourselves of during the decolonising process.

Conclusion

The days of yore might have sustained holiness tailed to matrimony and the enslavement of a woman in wifedom. However, the above notion steadily seems to be losing its hold in the light of the changing power dynamics in a society envisioned upon male values. Present-day dicta are trying to veer clear of the social prescriptions and are restructuring the social environment, refusing to enfranchise women upon the husband’s qualifications.

Keeping in mind the above contiguous stances on the bearing of marital status in issues afflicting primarily the female gender, it would serve best if the Apex Court let itself be inspired by the current wave of modernity seeking to unfetter ‘wives’ from their supposed social obligations and recognising their agency and individuality.

(This article is written by Apoorva Singh and Rini Mehra, students of Campus Law Centre-1, Faculty of Law, Delhi University)

References

  1. Joseph Shine v. Union of India, (2019) 3 SCC 39
  2. Ratna Kapur and Brenda Cossman, ‘On women, equality and the constitution: through the looking glass of feminism’, (1993) National Law School Journal Vol. I 1, 42
  3. Leela Kasturi, ‘Report of the Sub-Committee, Women’s Role in the Planned Economy, National Planning Committee Series (1947)’ in Maitrayee Chaudhuri Feminism in India (2004).
  4. Ibid.
  5. Ibid at 139.
  6. Id. at 2.

CITE AS: Apoorva Singh and Rini Mehra, ‘A Criminal Obligation: Marital Rape and its Premise’ (The Contemporary Law Forum, 05 July 2022) <https://tclf.in/2022/08/05/a-criminal-obligation-marital-rape-and-its-premise> date of access.

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