The Constitutionality of the Marital Rape Exception

In the aftermath of the Delhi gang-rape in late 2012, India’s rape laws were subjected to much public scrutiny, and eventually overhauled. While the changes involved, for example, tinkering with penalties for rape, they left one particularly odious part of the law untouched: the marital rape exception.

The Exception to S. 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

This Section creates two classes of persons: married women and unmarried women. It denies the protection of rape laws to the former. Consequently, prima facie, Article 14 of the Constitution is attracted. In order to survive a 14 enquiry, it must be demonstrated that this classification bears a rational nexus to a legitimate State objective.

It might be objected, at the outset, that the Exception doesn’t undertake a classification of persons at all, but only criminalizes certain kinds of sexual intercourse (that taking place outside the confines of marriage). That reasoning is specious. This is because the criminal act is defined by whom it is undertaken with. Non-consensual sex with an unmarried woman is a criminal offense; non-consensual sex with a married woman is not (if you’re the husband). Consequently, the classification is clearly on the ground of marital status.

What State objective could justify this classification? The actual objective with which the law was framed, in 1860, is not in doubt. In the England and United States of the time, that status of women was politically, economically, socially and sexually subordinate to men. Politically, they did not have the vote, on the grounds that, in accordance with republican theory, their interests were “virtually” represented by men. Economically and socially, there were restrictions on their freedom to contract, own and dispose off property, and engage as full participants in the economy, on the ground that men and women were born to inhabit “separate spheres” – the former for the public and economic realm, the latter for domesticity, child-birth and child-rearing. Sexually, they were not permitted to refuse sexual intercourse within the bounds of marriage. These numerous disabilities came together in a set of rules known as “coverture rules” – the broad doctrine that on marriage, the rights of the woman were subsumed by the rights of her husband. We can therefore understand that the marital rape exception is nested in a whole host of discriminatory practices that ultimately traced their justification to a denial of a woman’s autonomy and personhood, and grounded her political, economic, social and sexual status in the person of her husband.

There can be hardly any doubt that this set of doctrines was decisively repudiated at the time of the framing of India’s Constitution, as amply evidenced through a reading of the Constituent Assembly Debates. In every way, the Indian Bill of Rights is designed to set at nought the most pernicious hierarchies that pervaded society at the time – hierarchies based on caste, sex, religion and so on. This is reflected in the constitutional provisions that illegalise untouchability and forced labour, and most of all in the non-discrimination provisions under Article 15. To the extent that the Exception to S. 375 was based on the Nineteenth-century common-law rules of coverture, then, it is clear that that is no longer a legitimate state purpose, and the Article 14 challenge must succeed.

In order to justify the marital rape exception, then, the State must invoke a different purpose. It is difficult to see what such purpose could be. One possibility is to argue that the impossibility of marital rape is an integral part of all religions, and that therefore, insofar as the State’s purpose is to give effect to religious sentiments, it is a legitimate purpose. This reasoning was, of course, rejected by the Delhi High Court in Naz Foundation (not overruled on this point by the contrary SC decision), on the ground that the legitimate purpose must not be in conflict with the Constitution itself. Insofar, then, that certain religious practices are themselves directly discriminatory, giving effect to them through law is not a valid State purpose. This comports well with the basic idea of political liberalism (as reflected by the principles of our basic structure): a liberal State is premised on the principle of tolerance for a diversity of religious, moral and ethical doctrines insofar as those doctrines themselves do not deny the foundational idea of political liberalism – that society is built upon the voluntary cooperation of free and equal individuals.

It would seem, therefore, that insofar as the marital rape exception creates a classification between married and unmarried women, and denies to the former the equal protection of its criminal legislation, it prima facie violates Article 14; and I cannot, at the moment, think of a legitimate State purpose that would bear a rational nexus to the differentia, and save it from unconstitutionality.