The marital rape exception must go

A two-judge bench of the Delhi high court is hearing a constitutional challenge to the exception to Section 375 of the Indian Penal Code (IPC), commonly known as the “marital rape exception.” Section 375 of IPC defines the offence of rape (sexual intercourse by a man, against a woman’s will or consent), and sets out — in some detail — the circumstances under which it can be determined that consent has been vitiated (e.g. blackmail, intoxication, and so on). The exception to the section states, simply, that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The marital rape exception, thus, creates a legal fiction where, even if all the requirements for rape are otherwise fulfilled, the law deems not to be rape if the parties are married (and the woman is above 15). The 19th century origins of the marital rape exception are well documented: When IPC was enacted, there was a prevalent belief that the marital relationship carried with it a range of obligations — including sexual obligations — that existed independent of women’s will or consent. That view is inconsistent with our basic ideas of equality and consent as the preconditions for establishing any relationship.

As the Indian Supreme Court has noted on multiple occasions, equality requires us to reject norms and laws that are founded on gender stereotypes. Apart from being harmful and discriminatory towards women, the marital rape exception is also entirely arbitrary. As pointed out by counsel during the hearings, if sexual assault takes place five minutes before a marriage is formalised, it is rape; but five minutes after, it is not. Sexual assault will be rape if it is committed within the context of a live-in relationship – or any other intimate relationship — and yet, this magical legal immunity kicks in where that relationship has been formalised. The marital rape exception thus denies to one class of women — married women — the guarantees that law offers to all others.

Striking down discriminatory and arbitrary laws is the primary task of our constitutional courts. One would think, therefore, that the result in the present case should be a straightforward one. However, in public commentary, several objections have been made to the court striking down the marital rape exception.

First, it is argued that to do so would result in the creation of a new criminal offence, and that that is the task of Parliament, not the courts. While it is true that courts should not create new criminal laws, in this context, the argument is incorrect. The elements of rape are already set out in Section 375 of IPC. What the marital rape exception does is that it arbitrarily shields one class of perpetrators — married men — from the operation of the law. Striking down the exception removes that impunity. To take a parallel example: Suppose that Parliament passes a law defining the offence of murder, and then adds an exception stating: “Provided that homicide is not murder if committed by any member of the ruling political party.” It would be absurd to say that a court cannot strike down such a blatantly arbitrary law, because to do so would be to “create a new criminal offence for murder.” It would not – it would only remove an unconstitutional shield that a class of offenders was illegitimately enjoying thus far. The same is true for the marital rape exception.

Second, people have presented a parade of horribles that could ensue from this judgment: For example, possible future constitutional challenges that call upon courts to make our rape laws gender-neutral, and, therefore, involve the judiciary in the wholesale rewriting of criminal law. Now, it is true that there is a worldwide debate on whether – and how – sexual assault laws should be made more sensitive to the realities of how power and patriarchy operate through the framework of gender. However — and this is the key distinction — these discussions involve nuanced issues around legal policy, and our understanding of gender, consent, and power. They do not involve the straightforward discriminatory nature of the marital rape exception. There is, therefore, nothing inconsistent in the courts striking down the marital rape exception, while leaving the question of gender-neutral rape laws for Parliament to decide.

Finally, people have raised issues around evidence and proof. These objections, however, are bogus. Statistics show that on average, three-quarters of all sexual assaults are perpetrated by someone already known to the survivor. A vast majority of sexual assaults, thus, occur in intimate settings where in any event, the courts will have to sift through difficult issues around evidence and proof. Once again, there is nothing uniquely special about marriage — as opposed to any other intimate relationship — that makes these problems insurmountable.

At the end of the day, the indisputable fact is this: The marital rape exception — as an expression of the nation’s criminal law — publicly says to the world that consent is irrelevant to the question of rape in a marriage. For that reason alone, the court — whose task it is to uphold and vindicate everyone’s right to equal treatment and non-discrimination — should strike it down.

Gautam Bhatia is a Delhi-based advocate . He was involved with drafting one of the petitions before the high court .

The views expressed are personal