Recently, a judicial debate was generated on the legality of exception 2 to section 375 of the Indian Penal Code, 1860 which deals with the exception clause of marital rape. A PIL was filed before the Supreme Court. It has been argued at several instances that the exception is unconstitutional and violates the rights of a married woman. Yet the courts deliberately disregard it in order to uphold the sanctity of marriage. This shows the urgent need to establish specific laws on marital rape and uphold their right to consent.
The present study is geared to address the issue of exclusion of marital rape from the rape laws in India and brings to light the conflicting nature of different laws pertaining to protection of women. The paper also analyses the right of the state to interfere with a woman’s individual right. To understand this public private divide, the paper uses statutory and constitutional bases along with the opinions of notable scholars to arrive at relevant conclusions. It concludes by discovering that laws are tactfully designed to keep the private sphere out of the scope of justice by constantly focusing on the public sphere. Such laws are inherently designed to uphold the patriarchy in the society.
The following paper is divided into three parts. The first part explains the rape laws prevalent in India and the exception 2 to section 375 of IPC. The second part analyses the key elements of public private divide. It also shows how the prevailing laws in India have enabled this divide to exist. The last part of the paper provides a brief account of the feminist perspectives on the public private divide.
EXCLUSION OF MARITAL RAPE FROM RAPE LAWS:
Rape is defined under section 375 of IPC as sexual intercourse or penetration in the vagina, anus or mouth that is committed by a perpetrator against the victim without their consent. Similarly, marital rape refers to rape committed by the victim’s spouse. The burden to prove lack of consent lies on the victim. It is committed when a man uses physical force or authority over the female thereby violating the female’s modesty, dignity and self-respect. It reduces the status of women to an object of sexual gratification.
According to Justice Arjit Pasayat, “while a murderer destroys the physical frame of a victim, rapist degrades and defiles the soul of a helpless female.” As per the Indian society marriage is sacrosanct hence affairs of intimacy are private. Women are considered to be a chattel to their husband, having no rights in the marriage. Additionally, wives are treated subservient to their husband. Marital rape is listed in exception 2 of section 375 where non-consensual sexual intercourse or other sexual acts by a man with his own wife if she’s over fifteen years does not amount to rape. This provision was introduced by Sir Mathew Hale in his book ‘History of the Pleas of the Crown’ where he wrote “ the husband cannot be guilty of rape committed by himself upon his wife, for by their mutual consent and contract the wife hath given up herself in this to her husband which she cannot retract.”
Thereby the current law presumes perpetual consent of a wife to have sex with her husband after marriage. These laws give men an immunity and licence to rape. The tenants of marital rape are based on irrevocable implied consent. The exception of section 375 of IPC, 1860 violates the fundamental rights guaranteed by the constitution. Thus the rights of a married women are by the state when it allows their husbands to rape them without fear of prosecution.
PUBLIC PRIVATE DIVIDE IN LAW:
The public private divide came into existence with industrialization of western capitalist societies. This generated a divide in the public and private lives of people. The need for privacy at home came with the growth of welfare state and visible regulation of family life by state and law. These spheres showcase the prevailing the gender based patterns. Men continue enjoy a larger presence in the public sphere while women are restricted to the private sphere. Captivating women in private sphere enables male violence to occur with impunity.
Additionally, the public authorities failed to criminalize violence against women as men had already been accorded with significant privatized power by laws on marriage. The rights of married women were largely dissolved. Even today, law and state refuse to enter the private sphere to address problems like marital rape. It is argued that sanctity of the home and more specifically the marital bedroom are an important aspect of privacy. The public private divide is availed to categorize claims on whether it occurs in the private space of the home or the public sphere.
The state intervention in the privacy of domestic affairs is shrewdly constructed and is a dangerous notion. Similarly, the issue of State intervention in the privacy of domestic affairs is a shrewdly constructed, yet a dangerously misconceived notion. There are several reasons for this. First, as argued above, privacy does not protect spaces so much as it protects individuals within those spaces. It would protect the sexual acts within the confines of the marital bedroom, from the unwanted gaze of an external agent. Where the dignity and autonomy of one of the individuals within that marital relation is jeopardised, privacy cannot be manipulated to protect the interest of one against the other. The construct of privacy in the marital bedroom arises from the consensus between individual rights-holders to exclude others, and does not apply to situations when only one-party desires non-interference. Secondly, the right of privacy not only protects the individuals but also numerous instances of the legislature venturing into the private sphere to some extent mainly uphold the rights of individuals. Laws against domestic violence and cruelty are cases in point.
Third, the idea of consent is central to the right of privacy. Privacy of the family unit cannot be derived automatically incase of absence of consent by both parties. Privacy of the home derives its legitimacy from the privacy of the individual constituents of that home. Fourth, privacy is a limited right, the exact contours of which are usually determined in reference to other competing interests within a conflict of rights framework. When an act by one party violates the autonomy and dignity of another, the right to privacy cannot be claimed as an absolute defence against such violation.
In the following section, we illustrate how the exemption runs contrary to each of these guaranteed rights, through an analysis of established precedents and legal principles.
SECTION 9 OF HINDU MARRIAGE ACT, 1955
Section 9 of The Hindu Marriage Act, 1955 is meant to protect marriages from breaking on a flimsy ground and seeks to provide remedy to an aggrieved person whose spouse has left without reasonable ground. It deals with restitution of conjugal rights which seek to restore the marital union if either partner has withdrawn from the society without a reasonable excuse. Here, the person who has withdrawn from the marriage has the initial burden to give a reasonable excuse. The right to reside and cohabit together by virtue of entering a marital bond is called conjugal rights. Similarly, the petition of restitution of conjugal rights can be rejected when the respondent is capable of demanding matrimonial relief, the petitioner admits to having resorted to any matrimonial misconduct or if the petitioner makes it tough for the respondent to stay with him. However, in 1983, the Andhra Pradesh High Court struck down the provision of section 9 of the Hindu Marriage Act, 1955 in T. Sareetha v Venkata Subbaiah as it was believed to be unconstitutional. It was held that one had the right to privacy and it shouldn’t be lost by a marital union. Further it was observed that by enforcing a decree of restitution of conjugal rights against an individual forced her to engage in sexual relations with her husband thereby depriving her control over her body. The court held that section 9 was a serious breach of privacy as it transferred “the choice of whether or not to have marital intercourse to the State from the concerned individual”. The heart of the matter was that law was compelling sexual intercourse. Moreover, a crucial link was drawn between privacy and dignity by making a claim that individual is the right bearer in matters concerning their bodily integration. This judgement was reversed in 1983 in Harvinder Kaur vs. Harmander Singh Choudhry where the ruling stated that restitution of conjugal rights aimed at compelling parties to live in the same household and does not force sexual intercourse. Lately, in K.S. Puttuswamy v Union of India; individualistic definition of privacy was adopted. Although marital rape is not an offence in India, compelling women to reside with her husband takes away her right of whether to have a sexual intercourse.
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES, 2012:
The Protection of Children from Sexual Offences (POCSO) Act, 2012 is a comprehensive law which seeks to provide protection for children from offences of sexual assault, sexual harassment and pornography while safeguarding the interest of child at every stage of the judicial process by incorporating child friendly mechanism of reporting, recording of evidence, investigation and speedy trial of offences through designated special courts. The law was drafted with the intention of protecting the interest of vulnerable children in times of distress. It ensures their safety and dignity. POCSO is a special law for children on child sexual abuse and it is a gender neutral law. In India, the age of consent has been closely tied up with that of minimum age of marriage since colonial era and sexual activity for girls being traditionally sanctioned with marriage. The age of consent has undergone several changes as follows:
YEARAGE OF CONSENT AGE AT/ UNDER WHICH MARITAL RAPE CAN BE PROSECUTED MINIMUM AGE OF MARRIAGE (except in Muslim Personal Law)LEADING FACTOR186010 years 10 years-IPC enacted 189112 years12 * years-Act 10 of 1891 after amendment of IPC192514 years13 years-after amendment of IPC192914 years13 years14 yearsAfter passing the Child Restraint Marriage Act194016 years15 years15 yearsAfter amending the IPC and Child Marriage Restraint Act197816 years15 years18 years for girls and 21 years for boys After amending the Child Restraint Marriage Act2006 16 years15 years18 years for girls and 21 years for boysProhibition of child marriage act replaced the Child Restraint Marriage Act 201218 years 15 in IPC; 18 in POCSO18 years for girls and 21 years for boysPOCSO enacted 201718 years 18 years 18 years for girls and 21 years for boysSC in Independent Thought v. Union of India
*statutory marital rape made non cognisable
As mentioned in the table above the age of consent was fixed at ten years and there was no minimum age for marriage designated by the IPC until the death of Phulmoni Das, a ten year old who died in 1889 due to a sexual intercourse by her thirty year old husband. Despite the horrific circumstances it did not amount to an offence under the law as she had attained the age of consent. This triggered the increase in age limit to twelve years in 1891 and later fourteen as a part of the Child Marriage social reform. Eventually, in 1929 the Child Restraint Marriage Act was introduced that set a clear distinction between minimum marriage age and age of consent or statutory rape. Statutory rape refers to any form of sexual relations between minors irrespective of their consent. It treated sexual intercourse with a girl less than sixteen years as rape regardless of her consent. Later in 2012, POCSO was enacted. It focused on increasing the age of consent from sixteen to eighteen years and laid a statutory obligation on service providers and parents to compulsorily report instances of sexual abuse to the police. After a year, IPC made the age of statutory rape eighteen and was thus at par with the minimum marriage age.
A recent PIL called Independent Thought v. Union of India was filed in the Supreme Court where the question of whether sexual intercourse of a man with his wife between the age of fifteen to eighteen amounts to rape. Several prevailing laws were analysed to resolve this conflict. Section 375of IPC had raised the age of consent to eighteen to be in consonance with POCSO and Prohibition of Child Marriage Act. However, Exception 2 to Section 375 creates an exception to rape as it deals with forced sexual intercourse by a man with his own wife who is fifteen years or above. This permitted forced sexual intercourse by a husband with a minor between fifteen and eighteen years. Independent Thought, an NGO filed a writ petition before the Supreme Court stating that the law was unconstitutional. Moreover, the classification of married and unmarried girls for punishment of sexual violence had no rational nexus. The verdict of the Supreme Court increased the age of consent for sexual intercourse within marriages to 18. Before this ruling, sexual acts by a husband on his wife, where the wife was above 15 years of age did not constitute rape under criminal law. This lead to a legal anomally as the age of consent is 18 years, both in the Indian Penal Code and various special statutes enacted for children, notably POCSO. This exception was amended keeping in mind the best interest of women.
PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE ACT, 2005 (PWDVA)
Protection of women against domestic violence act, 2005 came into effect on October 26, 2006 after several years of activism and lobbying by the women’s movement in India. The enactment of this civil law marks an unprecedented move of providing civil relief in cases of violence. Before its enactment the victim could approach the court under section 498A of IPC. PWDVA contains a comprehensive definition of the term domestic violence, the provisions recognising a woman’s right to reside in the shared household and court orders in the event of domestic violence. It also caters to a woman’s inability to approach courts to initiate proceedings, due to her status of dependency. The law puts in place mechanisms that allow her access to court procedure and services.
It includes various forms of violence and abuse like physical, sexual, verbal, emotional and economic; whether directed at the wife or any relative(s) of the wife. It defines sexual abuse as, “sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman. Additionally, PWDVA provides effective access to justice as it introduced new authorities and mechanisms like the protection officer who acts as an interface between the women and court. This law not only protects married women but also women in live-in relationships. Since this law includes sexual abuse, it is often used as a remedy to safeguard women against sexual harassment in the domestic space. Significantly, sexual violence within a marriage is recognized by PWDVA.
PWDVA comes to the rescue of victims of marital rape as it is not considered a felony and is deemed to be an exception to rape under IPC. However, the impact of law hasn’t been noteworthy. It is noted that most orders fail to specifically mention the category of sexual abuse even when it is alleged and if it is mentioned, it is viewed through the patriarchal lens which deals with the moral point of view rather than violence and abuse.
This section deals with women being subjected to cruelty by her husband or relatives of the husband. Cruelty is broadly defined as acts inflicting physical/ mental harm to body/ health of women which is likely to drive her to commit suicide/ grave injury to women. It is often used to report instances of sexual harassment and abuse. A three year punishment along with a fine is prescribed. However, there is not relief and remedy for marital rape.
CRITIQUE ON THE PUBLIC PRIVATE DIVIDE:
Feminists argue that the public private divide is the ability of men to dominate the public sphere whereas women are essentially relegated to the private sphere. This has served to ingrain the patriarchal system that ensures oppression of women. The political process focuses on the public sphere whilst largely ignoring the private realm. Men have been able to maintain their dominance for generations by marginalising the private sphere. Feminists thereby attempt to address this problem that can be resolved by redefining the perceived and pre conceived notion of ‘political’. Several critical remarks have been made by renowned like Kate Millet who understands politics as “power structured relationships and arrangements whereby one group of persons is controlled by another.” Even Simone de Beauvoir argued that masculinity is continuously portrayed as the positive whereas the feminine is depicted inferior. Feminists attempt to depict that the division between private woman and public man is designed to prevent feminine values and women’s issue from entering the political structure.
CAROLE PATEMAN’S VIEWS:
The Sexual Contract, 1988 written by Carole Pateman challenged the liberal idea that the power of state does not contract the freedom of individuals because it is based on their consent. The social contract is braced up by a sexual contract which establishes a man’s political right over women as well as his right of access to a woman’s body. This enables systematic subordination of women to men. Social contract seeks to establish equality and freedom among genders while sexual contract subtly creates a basis for inequality. Moreover, excluding women from sexual contract demonstrates the sexual hierarchy prevalent in the so called sacred institution of marriage. Patriarchy is further reimagined by the absence of women in politics mainly due to the roles assigned and expected out of them from the society. Women had to enter this supposed contract forcefully because of the prevailing customs and laws which deprived women of the opportunity to become financially independent; hence marriage was their only hope to a decent life. For Carole Pateman, the Social Contract theory was deeply flawed as it failed to address the sexual contract which played a role in shaping the present day institutions of private and public realm.
Saptarshi Mandal states how judges see sex within a marriage as a norm and continue to add a legal function to it. Most judges adopt an affirmative attitude towards sex as a pursuit of marital happiness even if leads to health consequences. Additionally, states how the law holds a person liable on the grounds of cruelty and has legal consequences if he/she deliberately avoids sex with their partner. Marital sex is considered to be a marital obligation and state that normal and healthy sexual relationship is a basis of a successful marriage. Marital sexuality has always been a sensitive issue yet there is no mention of consent. This provides a ground for rising cases where wives allege forced sex to seek divorce.
This paper focused on studying the exclusion of marital rape from rape laws in India and how the public private divide in law enables this divide to exist. The primary law dealing with rape (section 375) does not hold a husband liable for forcing sexual relations on his wife. It arises from a sense of submissive nature of spousal consent in marriage which is presumed. It deals with the notion of sexual privilege won at time of a marital association. This hampers with a woman’s right to privacy is an essential requirement to protect her interests. Moreover, the preservation of marriage must not be at the cost of safety and autonomy of a woman in marriage. The paper also studies the discrepancy in the laws prevailing in India which are so tactfully designed in order to uphold and protect the patriarchal society. Section 9 of Hindu Marriage Act, 1955, The Protection of Children from Sexual Offences Act, 2012, Protection of Women from Domestic Violence, 2005 and Section 498A show how the law is contradictory. Additionally, several scholars have critiqued this exception. Despite the evolving nature of law there has been no relief to women who suffer from marital rape.
Section 375 of Indian Penal Code 1860.
Anne Dailey, ‘To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment’ (1986) 99(6) Harvard Law Review 1255, 1256.
Naz Foundation v Government (NCT of Delhi)  SCC OnLine Del 1762 ; Mandal, ‘Right to Privacy’ (n 75) 535-36
A modified form of the same idea was first articulated in T Sareetha v T Venkata Subbaiah  AIR 1983 AP 356 (Andhra Pradesh High Court).
Saptarshi Mandal, ‘“Right to Privacy” in Naz Foundation: A Counter-Heteronormative Critique’ (2009) 2 National University of Juridical Sciences Law Review 525, 526
In Justice KS Puttaswamy v Union of India (2017) 10 SCC 1, the Supreme Court did not elaborate on this, though in Chandrachud J’s lead opinion (Nariman J and Kaul J also) certain indicators were left for future courts.
T Sareetha v T Venkata Subbaiah  AIR 1983 AP 356 (Andhra Pradesh High Court).
AIR 1984 Delhi 66, ILR 1984 Delhi 546, 1984 RLR 187
Partners for Law in Development, TOWARDS VICTIM FRIENDLY RESPONSES AND PROCEDURES FOR PROSECUTING RAPEA STUDY OF PRE-TRIAL AND TRIAL STAGES OF RAPE PROSECUTIONS IN DELHI, 2017, available at https://bit.ly/2E3jLln.
Sakshi v. Union of India, 2004 Supp (2) SCR 723.
19(1), POCSO Act, 2012
Partners for Law in Development, TOWARDS VICTIM FRIENDLY RESPONSES AND PROCEDURES FOR PROSECUTING RAPEA STUDY OF PRE-TRIAL AND TRIAL STAGES OF RAPE PROSECUTIONS IN DELHI, 2017, available at https://bit.ly/2E3jLln.
OXFAM INDIA, PROTECTION OF WOMEN AGAINST DOMESTIC VIOLENCE, https://donate.oxfamindia.org/sites/default/files/Protection-of-women-from-domestic-violence-act-2005.pdf
JHUMA SEN, HANDBOOK FOR PARLIAMENTARIANS, Centre for Legislative Research and Advocacy and Oxfam India, July-August 2014
JHUMA SEN, HANDBOOK FOR PARLIAMENTARIANS, Centre for Legislative Research and Advocacy and Oxfam India; BHUMIKA JHAMB, The Missing Link in the Domestic Violence Act, Economic and Political Weekly, July-August 2014
CAROLE PATEMAN, THE SEXUAL CONTRACT,154,Polity press 1988
Carole Pateman, “Women and Consent,” 8 Political Theory 149 (1980); Diana Coole, “ReReading Political Theory from a Woman’s Perspective,” 34 Political Studies 129 (1986);
Saptarshi Mandal, “Do Personal Laws Get their Authority from Religion or the State— Revisiting Constitutional Status,” Economic & Political Weekly (2016).
Srikant Rangacharya Adya v Anuradha 1980
Shakuntala kumari v Om prakash ghai 1980