Challenges to the Marital Rape Exception | Day 1: The law is patriarchal and violates the fundamental rights of married women, argue petitioners

Today a three-judge bench of Chief Justice D.Y. Chandrachud with Justices J.B. Pardiwala and Manoj Misra commenced hearing a batch of petitions challenging the provisions under Indian criminal law which exempt a man from the offence of rape if performed against his wife. 

The batch of petitions first reached the top court over one-and-a-half years ago. These include two writ petitions under Article 32 and several appeals against decisions from the Karnataka and Delhi High Courts. 

Senior Advocates Karuna Nundy and Colin Gonsalves argued on behalf of the petitioners today. They submitted that the ‘marital rape exception’ found under Section 375 of the Indian Penal Code, 1860 and Section 63 of the Bharatiya Nyaya Sanhita, 2023 are violative of Articles 14, 15, 19 and 21 of the Constitution.

The scope of the exception is too broad

Nundy, appearing in three petitions, led the arguments on behalf of the petitioner-appellants today. First, she clarified that Section 375 of the IPC which dealt with the offence of rape mirrored Section 63 in the BNS. The only difference between the two provisions is the minimum age prescribed for women. The IPC says that an offence of rape occurs when a man engages in sexual intercourse or acts with or without the consent of a woman under 15 years. Under the BNS prescribed age is increased to 18 years. This provision, she said, included anal rape and abetment to rape. 

She submitted that the exception created for the husband under Section 375 of the IPC and 63 of the BNS was too broad. She relied on Section 63(d) which describes a situation where a man is said to have committed the offence of rape when he “applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person.” 

The use of the phrase “any other person” is of importance. Nundy submitted that typically, a man who forces a woman to engage in sexual intercourse or sexual acts with another man is guilty of rape. However, the ‘marital rape exception’ exempts a man from punishment for this offence, if the woman in question is his wife. In a sense, she said the exception exempts a husband from the offence of gang rape as well. 

Striking down the marital rape exception does not create a new offence

After lunch, the Chief posed a question: The Parliament, while creating the law envisioned that sexual intercourse or a sexual act by a man with his wife is not rape. Would striking this down venture into the substantive right of the provision and create a new offence? Does the Court have the power to do so? 

Nundy answered that an “offence” under penal law is an act or omission. Rape was already an offence. Partially striking down the ‘marital rape exception’ as unconstitutional would not create a new offence. The Union, Nundy said, would urge the Court to exercise “judicial restraint” in striking down the exception as they will claim that it would amount to creating a new offence. However, this was not the case. 

“The offence is the act or the omission, not who does it,” she said. Therefore, a person could not be exempted from punishment for the offence of rape simply because he was the husband of the survivor. 

Moreover, she pointed out that Section 67 of BNS penalises sexual acts by a husband who is separated from his wife, therefore rape within the context of marriage is already recognised by the law. 

Striking down the exception, Nundy submitted would amount to striking down a legal fiction, not the creation of a new offence. 

The presumption of a lack of consent in marriage is antithetical to constitutional values

Nundy then emphasised the importance of agency, autonomy and consent in a marriage. She submitted that the notion that forced sexual intercourse or sexual acts within a marriage would not amount to rape is patriarchal and unconstitutional. 

She stated that the ‘marital rape exception’ was sourced from the Hale’s Law principle in English jurisprudence which stated that a husband cannot be guilty of rape of his wife because she gives herself up to him upon marriage. This has since been buried by courts in the UK. The Chief pointed out that the Union in their affidavit had clarified that they were not in support of Hail’s law.

To buttress her argument, she relied on the Supreme Court’s decision in Joseph Shine v Union of India (2018), which decriminalised adultery, reasoning that the phrasing in the IPC was regressive and sexist. 

Nundy read out several paragraphs of the judgement. Notably: 

“The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated.”

The Court in Joseph Shine also relied on the privacy judgement in Puttawamy v Union of India (2017) and the decision to decriminalise homosexuality in Navtaj Singh Johar v Union of India (2018), to emphasise the importance of agency and choice in private spheres of marriage.

The Court had also referenced Nivedita Menon‘s book Seeing like a Feminist, which recognised the patriarchal family as the “basis for the secondary status of women in society.”

Nundy concluded her arguments by stating that the fight in this case was not between men and women but between people and patriarchy. 

Penalising rape in marriage purifies the institution

Gonsalves addressed the bench for a little over half an hour towards the end. He focused his arguments on international standards and principles. Notably, he stated that in a judgement from Nepal, the judges had held that criminalising abuse and rape in a marriage would not break the institution but rather “purify” it. 

He also drew the attention of the Court to two reports from the United Nations (UN) which stated that up to 40 percent of men in parts of India were committing the offence of marital rape. 

Further, he submitted that as per the Universal Periodic Review by the UN, India had not met the standards prescribed by international law for the offence of marital rape. 

He also emphasised that according to a UK Law Commission report, there was no evidence to suggest that criminalising marital rape would open the floodgates to excessive litigation. 

Senior Advocates Gopal Sankaranarayanan and Indira Jaising will conclude arguments for the petitioners’ side on Tuesday, 22 October 2024. Solicitor General Tushar Mehta will then open arguments on behalf of the Union.