Marital rape: The dilemma of courts

The Indian High Courts seem puzzled by Exception 2 to Section 375 of the Indian Penal Code (IPC), popularly known as the Marital Rape Exception (MRE). The aforesaid exception states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The only improvement to this draconian provision was made through the landmark judgement of Independent Thought v. Union of India, whereby the Supreme Court of India substituted the age of fifteen years for 18 years in view of child brides in India who are subjected
to sexual intercourse by their husbands. Yet, the issue of marital rape being legitimately insured persists.

The Criminal Law Amendment Act of 2013 widened the scope of the exception to further include “sexual acts” along with “sexual intercourse,” which was previously absent.

In the recent case of Hrishikesh Sahoo v. State of Karnataka, the Karnataka High Court held that “no exemption in law can be so absolute that it becomes a licence for
the commission of crime against society.”

The Court simplified its view by stating that “a man is a man; an act is an act; rape is a rape, be it performed by a man, the “husband,” on a woman, the “wife.” It substantiated its view by stating that the institution of marriage cannot be understood to confer on a husband a special male privilege that licences him to unleash the beast within him. The Court stated that any act punishable by a “man” is inarguably punishable by a “husband” who is a man.

Furthermore, the Karnataka High Court highlighted how MRE violates the fundamental right to equality enshrined under Article 14 of the Indian Constitution. It stated that MRE makes an unnecessary distinction between a woman who is not a wife and a woman who is a wife. Similarly, it accords a distinct status to a man who is not a husband
and a man who is a husband, the latter being exempted for his acts.

Under the IPC, every offence by a man against a woman is punishable. However, only in the case of rape does a difference arise between a man and a husband. Such a difference is regressive in nature and premised on the idea of the subordination of the wife to her husband.

One of the contentions in the 2022 case of RIT Foundation v. Union of India was regarding whether striking down MRE would result in the creation of a new offence, which, as per the doctrine of separation of powers, is excluded from the judiciary’s purview. A split verdict was delivered by
the two-judge division bench
of the Delhi High Court on
this matter.

On the one hand, Justice Rajiv Shakdher stated that striking down MRE does not create a new offence; rather, it widens the ambit of the existing offence of ‘rape’ under Section 375 of the IPC to include husbands. It is the function of the courts to employ tools to strike down what is unconstitutional and retain what is constitutional. Article 13 of the Indian Constitution urges the courts to declare a law “void” if it is inconsistent
with the fundamental rights of individuals.

Furthermore, penal law does not depend on the victim-perpetrator relationship as much as it depends on the commission or omission of an offence. The lack of a determining principle as to the reason behind the omission of a husband from the purview
of MRE makes it constitutionally invalid.

On the other hand, Justice Shankar stated that striking down MRE results in the creation of a new offence of marital rape that alters the existing statutory position on non-consensual sex between spouses. It is rather the function of the Legislature to consult the stakeholders and designate an act as a criminal offence.

To justify further, he stated that striking down MRE would result in the husband getting the same punishment that is given to rapists, which might not be intended by the Legislature. If a court cannot prescribe punishments, it certainly cannot prescribe an act as an offence.

The Supreme Court’s decision on MRE is long awaited in lieu of the different approaches and interpretations given to MRE by various High Courts in India.

(The writer is a final-year student at Ramaiah College of Law, Bengaluru.)