Category Archives: Marital Rape

Addendum: The Impact of the S. 2(q) Judgment upon the Marital Rape Exception

Previously on this blog, we have discussed the marital rape exception under the Indian Penal Code. Recall that Section 375 of the Indian Penal Code sets out the ingredients of the offence of rape. Exception 2 to Section 375 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.” I had argued earlier that Exception 2 creates two classes of women – married and unmarried (for the moment, let us ignore the intermediate category of separated women, who fall within S. 376B of the IPC), and accords unequal protection of law to these classes. It does likewise with men, and consequently, infringes Article 14 of the Constitution.

The objection to this line of argument is as follows: the effect of striking down Exception 2 would be to create a new offence altogether: the offence of marital rape. This is, in essence, a legislative task. Consequently, a Court, exercising judicial functions, will be overstepping its jurisdiction if it legislates a new crime.

How persuasive you find this objection depends upon whether you read Exception 2 as classifying acts or classifying persons (a distinction made notorious, of course, in Koushal vs Naz). Yesterday, however, we discussed the judgment of the Supreme Court in Hiral P. Harsora vs Kusum Narottamdas Harsorawhere Justice Nariman, writing for a two-judge bench, struck down S. 2(q) of the Domestic Violence Act on the ground of an Article 14 violation. In my view the Court, in Hiralal P. Harsora, did precisely what it would need to do to strike down the marital rape exception. Recall that S. 2(q) of the DV Act stated:

“….“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

Just like the marital rape exception, S. 2(q) effectively stipulated that acts of “domestic violence” (defined in S. 3 of the Act) would not fall within the DV Act if they were committed by female and/or persons (who were not relatives of a husband or male partner). The Court reasoned that this classification bore no rational relation with the purpose of the Act, which was to protect women from domestic violence “of all kinds”. The effect of the Court’s judgment was to widen the ambit of the DV Act by ensuring that henceforth females who committed domestic violence could be proceeded against under the Act. Or, if you want to put it another way, the Court legislated a new offence (albeit not a criminal offence): commission of domestic violence by females (who are part of a domestic relationship). Transposing this logic to the marital rape exception the argument is straightforward: the marital rape exception stipulates that husbands who commit rape do not fall within the ambit of S. 375 IPC. This classification bears no rational relation with the purpose of the Section or the IPC (i.e, to prevent and punish crime). The effect of striking down the Exception will be to widen the ambit of S. 375 by ensuring that henceforth husbands who commit rape can be proceeded against under S. 375. This might amount to “legislating a new offence” – but the Court just did that last week.

An immediate objection may be raised: S. 2(q) of the DV Act was part of the definitional section, while S. 375 IPC stipulates the ingredients of the crime of rape. The two are not equivalent, therefore, and it is only in the latter case that constitutional invalidity would result in legislating a new offence. In my view, however, the distinction is only a semantic one. As described above, what the Court is doing in the two cases is the same thing, and the result is the same. In both cases, two things are happening: an act that was not previously an offence is now an offence (commission of domestic violence by females and commission of rape by husbands); and a class of persons that were previously exempted from liability for committing the same act (females committing domestic violence and husbands committing rape). The basis is also the same: the two enactments tackle a certain kind of offence (domestic violence, rape), and consciously leave out a class of persons from liability, even though that class of persons might – in the non-legal sense – commit exactly that offence. Whether this is done through the definitional section or the ingredients section is a question of legal form, and not relevant to an Article 14 enquiry.

However, at this stage, a further objection may be made: the previous argument only deals with the act that constitutes the offence. S. 375, however, does not merely punish sexual intercourse, but punishes sexual intercourse without consent. The marital rape exception is based upon the premise that within marriage, spousal consent to sexual intercourse is presumed. Whatever the validity of this assumption, it is open to the legislature to make it; more importantly, if this is the basis of Exception 2, then it takes the provision out of the ambit of Article 14 altogether, and also dispenses with Hiralal P. Harsora as precedent.

It is no doubt true that the underlying assumption of Exception 2 is the doctrine of presumed consent within marriage. However, that is not what the Exception says. Had the Exception stated that “Sexual intercourse by a man with his own wife is deemed to be with her consent“, then it would have been a different matter.

It might be objected, however, that this is precisely the semantic distinction that we have argued against above. Section 375 is entirely about the question of consent. Consent is built into the definitional clauses. Consequently, the only reasonable way to read Exception 2 is to read it as stipulating deemed consent.

Such a reading, however, would put Exception 2 at odds with the rest of the IPC. Consider Section 87 of the IPC:

“Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”

Now, while Exception 2 states that marital rape is not “rape”, legally defined, it does not exempt marital rape from falling within other sections of the IPC. Prima facie, marital rape could constitute hurt (S. 319), wrongful restraint (S. 339), use of criminal force (S. 350), and sexual harassment (S. 354A). Now, under the doctrine of presumed consent, none of these offences could apply to sexual intercourse between husband and wife, since Section 87 would kick in. Consequently, there ought to have been a marital exception – along the lines of Exception 2 to Section 375 – for each of these provisions. However, there isn’t. Consequently, the doctrine of presumed consent cannot be taken to be the only explanation for the marital rape exception.

In fact, the explanation that is most commonly given – and which was invoked during the recent public debates on marital rape – is that the Exception is necessary in the interests of family unity and integrity. Whatever one may think about the merits of this answer, and the further argument that it family unity is a legitimate legislative purpose under Article 14, it is important to note that this argument is also excluded by Hiralal P. Harsora, since Justice Nariman, in that case, clearly derived the legislative purpose from the statement of objects and reasons and preamble of the DV Act, and did not engage in a roving enquiry about other possibly justified purposes. Under this framework, it is immediately clear that family unity is no part of the legislative purpose underlying the IPC as a whole, or Chapter XVI (“offences affecting the human body”), or even S. 375. The IPC is a criminal statute, and its purpose is the prevention, detection, deterrence, and punishment of crimes. And it is impossible to conceive of a defence of the classification drawn by the marital rape exception that bears a rational relation to these goals.

Consequently, I would argue that the reasoning in Hiralal P. Harsora, if applied consistently, leaves the Supreme Court with no other option but to strike down the marital rape exception as unconstitutional, if and when a challenge was brought before it.

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T. Sareetha vs T. Venkata Subbaiah: Remembering a Revolutionary Decision

On July 1, 1983, Justice P.A. Choudary of the Andhra Pradesh High Court struck down Section 9 of the Hindu Marriage Act, which allowed the Court to pass an order for ‘restitution of conjugal rights.’ In simple language, if the Court was convinced that either a husband or a wife had ‘without reasonable cause, withdrawn from the society‘ of their spouse, then it could decree that the defaulting spouse was required to go back to the company of their partner – a decree that could be enforced by attaching the defaulter’s property. Justice Choudary held that Section 9 violated the rights to equality and privacy under the Constitution, and was accordingly void. Within five months, the Delhi High Court handed down a judgment disagreeing with this conclusion. And a little over a year later, the Supreme Court affirmed the judgment of the Delhi High Court, bringing the legal controversy to a close.

Sareetha remains as a footnote in family law courses, a passing reference in discussions about the restitution of conjugal rights. This is a pity. Sareetha was one of those rare cases in Indian constitutional history where a Court understood the Constitution as a radically transformative document, and struck out in a direction that was unfamiliar, bold, and creative – while remaining constitutionally tethered. Its interpretations of equality and privacy anticipated similar developments in other jurisdictions by years, or decades; and in some respects, it is still ahead of the time. Quite apart from the actual decision, it is its reasoning that constitutional lawyers should not forget; because even though the Supreme Court overruled the judgment, and perhaps closed off the window to a certain kind of legal change, Sareetha’s reasoning remains a template for other cases that might attempt to shape equality and privacy in an emancipatory and progressive direction.

Polis and Oikos: The Privacy of the Ancients

To understand the radicalism of Sareetha, we need to begin at the beginning. The distinction between the public and the private sphere, which is one of the most controversial issues today, and which was at the heart of Sareetha, had its origins in classical Athens.  As Don Slater writes, “The public sphere – the polis or res publica – was the realm of free association between citizens. Men [and only men] were deemed free in the polis not because it was unregulated, but because it was kept rigidly separated from the private sphere of the household and the domestic economy (oikos): the domestic sphere was regarded as the realm of mere physical reproduction, and therefore of the compulsion and slavery of needs.” In her book, The Human Condition, Hannah Arendt records that the public sphere (which Humphrey’s defines by its ‘impersonality’) was the arena of “equals” – men, who came together to debate and discuss issues affecting their City-State were neither “to rule, nor to be ruled.” In fact, the very idea of ‘rule’ was at odds with the idea of the polis. In the oikos, on the other hand, the male head of the household had absolute dominion over his slaves, the women, and the minor children. It was these who would ensure the satisfaction of his bodily needs, thus liberating him from ‘necessity’, and freeing him to participate in the public sphere with other, equally situated men.

The public/private divide, therefore, mapped on to the dichotomy between freedom and necessity, equality and inequality. The claims of equality were restricted to the public sphere (polis), and simply weren’t applicable to the household (oikos), which was defined by its inequality.

Public and Private: The Privacy of the Moderns

The public/private divide largely disappeared during feudal times (the manorial households, in a sense, came to embody characteristics of both spheres), and then made a reappearance after the Enlightenment and the revolutionary era. The modern era – Arendt argues – saw economic activities and market transactions taken out of the domain of the private sphere, which was now defined as the site of intimacy, or intimate relationships. At this time, as Seyla Benhabib records, the American and French Revolutions had brought into public consciousness the ideas of basic rights, and the idea of autonomy. Quoting the philosopher Lawrence Stone, she observes that:

“… from the beginning there were tensions between the continuing patriarchal authority of the father in the bourgeois family and developing conceptions of equality and consent in the political world. As the male bourgeois citizen was battling for his rights to autonomy in the religious and economic spheres against the absolutist state, his relations in the household were defined by nonconsensual, nonegalitarian assumptions. Questions of justice were from the beginning restricted to the ‘public sphere’, whereas the private sphere was considered outside the realm of justice.”

Unlike the Ancients, who accepted that the private sphere was essentially inegalitarian, the moderns held that it was simply not subject to the claims of equality. Benhabib further points out that “power relations in the ‘intimate sphere’ have been treated as though they did not even exist.” It is this idea of privacy that culminated in judicial holdings in the 20th century that viewed privacy as a question of a space of seclusion, a space that the State could not enter. After Warren and Brandeis wrote their famous article at the end of the 19th century, viewing the right to privacy as a right to seclusion, or a right to be let alone, the American Supreme Court held that the right extended to “areas” where there was a “reasonable expectation of privacy.”

It was this spatial concept of privacy that was strongly criticised by feminist legal scholars over the second half of the 20th  century. In light of the fact that the “private sphere” is itself a hierarchically structured space, Martha Nussbaum points out that “recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.” A classic example of this is the marital rape exception which deems that forcible sexual intercourse within the marital relationship does not amount to rape.

Community and Individual: Privacy in Colonial India

In colonial India of the late nineteenth century, where – in the words of historian Tanika Sarkar, there first began to emerge a “pre-history of rights“, privacy took on yet another form: here, it became the right of communities to determine certain issues – including the treatment of women – free from the interference of the colonial State. Tanika Sarkar, Lata Mani, Partha Chatterjee, and other scholars recount the debates around the abolition of Sati, the raising of the Age of Consent, and indeed, on restitution of conjugal rights. Chatterjee notes, for instance, that “the so-called women’s question in the agenda of Indian social reform in the early 19th century was not so much about the specific condition of women as it was about the political encounter between a colonial state and the supposed “tradition” of a conquered people.” In other words, community “traditions”, which centrally involved the rights, positions, and social roles of women, were deemed to be off limits, since they came to represent, or embody, the “inner life” of the community. So the idea of privacy (although it was not framed in so many words) became connected with group rights; or, it was groups that – as bearers of value in themselves – that became the holders of something like a right to privacy.

The Ambiguity of Gobind v State of MP

Therefore, when the Indian Supreme Court began to take up issues relating to the right to privacy, it was adjudicating in the context of a number of different – although somewhat complementary – traditions. The case that first held that there existed a constitutional right to privacy in India reflected this problem. In Gobind v State of MP,  the Supreme Court held, in sphinx-like tones, that:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

As I have noted before, part of the reason why this definition sounds confusing is that it was lifted by the Supreme Court from an American decision delivered in an entirely different context – that of adult theatres. In any event, a quick reading of this sentence reveals at least four possible underlying themes:

(a) A spatial idea of privacy, flowing from the use of the word “home”, and the fact that all the terms that follow it refer to activities normally undertaken within the home

(b) An institutional, or relational idea of privacy: the home (in the sense of a household), the family, marriage, and motherhood are all social institutions. The right to privacy, then, protects the sanctity of these institutions by insulating them against State interference.

(c) A functional idea of privacy: motherhood, procreation, and child-rearing, in particular, seem to suggest domestic activities (and the absence of ‘fatherhood’, in turn, suggests the gendered nature of the division).

(d) An individualistic idea of privacy that focuses upon bodily integrity and decisional autonomy: a few years before Gobind, the American Supreme Court in Griswold v Connecticut and Roe v Wade  had upheld the right to contraceptives and the right to abortion, on grounds of privacy; privacy, here, refers to the right of the individual to make her own choices about decisions that directly affect her bodily integrity.

As we can see, while the first three interpretations reflect the various conceptions of privacy discussed above, the fourth marks something of a break. In Sareetha, the Justice Choudary would take this fourth idea, and use it to develop a transformative vision of privacy.

Sareetha; Reasoning and Outcome

A. Privacy as Individual Dignity

Justice Choudary held that “a decree of restitution of conjugal rights thus enforced offends the inviolability of the body and the mind subjected to the decree and offends the integrity of such a person and invades the marital privacy and domestic intimacies of such a person.” According to him, at the heart of the issue was the fact that the law, essentially, was a law compelling sexual intercourse. “The consequences of the enforcement of such a decree”, he observed, “are firstly to transfer the choice to have or not to have marital intercourse to the State from the concerned individual and secondly, to surrender the choice of the individual to allow or not to allow one’s body to be used as a vehicle for another human being’s creation to the State.” 

Notice, however, that the law itself does not require sexual intercourse. It only authorises a decree for cohabitation, which can be enforced through attachment of property. This is why Justice Choudary spoke of the consequences of enforcing a decree – and it is here that we see the first major break with traditional conceptions of privacy. Because Justice Choudary was not content simply to end his enquiry at the point of cohabitation – but to go further, to find that given the deeply unequal structure of the family, and given the myriad pressures – not simply physical, but of every other kind – that could be brought to bear upon a woman who is shorn from the protection of her own family, a decree for cohabitation would, in all likelihood, lead to compelled intercourse. Taking the example of a Madhya Pradesh High Court decision where a woman called Tarabai was required by decree to go back to her husband, Justice Choudary observed that “what could have happened to Tarabai thereafter may well be left to the reader’s imagination.” This, for him, was completely unacceptable, because:

Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship.”

And for a women, who would be the one to conceive, “in a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.” Here, for the first time, we see a vision of privacy that focusses upon a combination of bodily integrity and decisional autonomy. Soon afterwards, Justice Choudary cited Gobind, and then focused on one particular line in Gobind:

“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

Latching upon the concept of privacy-dignity (and dignity, it will be noticed, speaks to the individual), Justice Choudary then noted “any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”

This is a crucial observation, since it completely rejects the view that the site of privacy claims are social institutions, such as the marriage or the family, and accepts, instead, the opposite claim that the right-bearer is the individual. Privacy, therefore, is to be understood not as an exalted space within which the State cannot enter (no matter what happens within that space), but as a right accorded to each individual, which guarantees her autonomy in all fundamental decisions concerning her body.

B. Justice Brandeis and the Balance of Power

Interestingly, during the course of his argument, Justice Choudary also referred to Justice Brandeis’ dissenting opinion in the case of Olmstead vs New York.  Olmstead was a 1928 American Supreme Court decision concerning the admissibility of evidence obtained through a wiretap. The majority held that the wiretap did not offend the Fourth Amendment, which was limited to  prohibiting illegal searches of “persons, houses, papers, and effects”. Justice Brandeis, however, refused to read the Fourth Amendment in such a literal way. He observed:

“When the Fourth and Fifth Amendments were adopted, “the form that evil had theretofore taken” had been necessarily simple. Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify — a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life — a seizure effected, if need be, by breaking and entry. Protection against such invasion of “the sanctities of a man’s home and the privacies of life” was provided in the Fourth and Fifth Amendments by specific language. But “time works changes, brings into existence new conditions and purposes.” Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Justice Brandeis’ basic point was that as invasive State technologies increase in scope and reach, the law must correspondingly evolve to continue effectively protecting the individual. Underlying this is the idea that there must, at all times, remain a balance of power between State and individual. The more power the State acquires, the further must the law reach to constrain its use, lest we arrive at a totalitarian society in which State power has completely overwhelmed the individual.

The innovation in Sareetha is that it takes Brandeis’ idea of a parity of power between individual and State, and extends that to apply horizontally, in the private realm. The link between cohabitation and compelled intercourse is based upon a difference in power: and Sareetha’s striking down of S. 9 is a Brandeisian attempt to restore the balance. In a truly radical fashion, therefore, Justice Choudary’s attempt was to bring about – in the smallest of ways possible – a democratisation of the private sphere.

C. Article 14 and Indirect Discrimination

Justice Choudary’s last argument was with respect to Article 14. Section 9, of course, was facially neutral: the remedy, in theory, was open to both husbands and wives. But, Justice Choudary held, ” “Bare equality of treatment regardless of the inequality of realities   is neither justice   nor homage to the constitutional principle”… the question is how this remedy works in life terms In our  social reality, this matrimonial remedy   is found used almost exclusively by the husband  and is rarely resorted to by the   wife. A passage in Gupte’s Hindu law in British India’ page 929 (second edition) attests to this   fact…  the reason for this mainly lies in the fact of the differences between the man and the woman. By enforcing a decree for restitution of conjugal rights the life pattern of the wife is likely to be altered irretrievable whereas the husband’s can remain almost as it was before this is so because it is the wife who has to beget and bear a child. This practical but the inevitable consequence of the enforcement of this remedy cripples the wife’s  future  plans of life and prevents her from using that self-destructive remedy… The pledge of equal protection of laws is thus inherently incapable of being fulfilled by this   matrimonial remedy in our Hindu society. As a result this remedy words in practice only as an engine of oppression to be operated by the husband for the benefit of the husband against the wife.”

On this blog, we have often discussed the question of whether, to prove discrimination, once must show that the law was intended, or had a motivation to, discriminate; or is it adequate to show that the law, although neutral in its terms, has a disproportionate impact upon a certain group of people. The former views discrimination as a result of a discrete, intentional act; the latter, as the result of long-standing structures and institutions. The former understands social realities as independent of law, providing a neutral background within which law operates; the latter insists that these social realities are always constructed by, and complementary to, the legal system – and that therefore, laws which reproduce or endorse such social realities are equally suspect (or, in the words, of Justice Albie Sachs, the purpose of a Constitution is to transform “misfortune to be endured into injustice to be remedied“). In his analysis of the differential effects of Section 9 based upon a social reality that placed the cost of child-bearing and rearing disproportionately upon women, Justice Choudary firmly endorsed the latter, more nuanced understanding, of equality.

The Radicalism of Sareetha

We are now in a position to understand the full extent to which Sareetha was a transformative and radical judgment. In specifically applying Article 14 to the private sphere, Justice Choudary repudiated the privacy of the Ancients, according to which equality was a value only in the public sphere. In specifically invoking the power hierarchies and inequalities in the private sphere to justify his decision, he repudiated the spatial conception of the privacy of the moderns, that turns a blind eye to the realities of domination and subordination within the home. In invoking Justice Brandeis, he brought the idea of maintaining an egalitarian balance of power between State and individual into private relationships, and took a small step towards the democratisation of the private sphere. And in finding an Article 14 violation, he advanced a view of equality that was grounded in structures and institutions, rather than individual acts. One may disagree with his final conclusion – and in fact, Flavia Agnes, among others, has made arguments defending S. 9 – but the reasoning remains powerful, and a clarion call for a progressive vision of privacy and equality.

Aftermath

Soon after Sareetha, the Delhi High Court came to the opposite decision. In Harvinder Kaur v Harmender Singh Chaudhary, it held that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14- have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond. That the restitution remedy was abolished in England in 1970 by Section 20 of the Matrimonial Proceedings and Properties Act 1970. on the recommendation of the Law Commission headed by Justice Sharman is no ground to hold that it is unconstitutional in the Indian set-up. In the home the consideration that really obtains is that natural love and affection which counts for so little in these cold courts. Constitutional law principles find no place in the domestic code.” 

In its blanket refusal to apply equality and privacy to the “home”, the Delhi High Court reinstated the traditional, spatial view of privacy, that closed off a physical space from State intervention. This was upheld by the Supreme Court, which also added that “the right of the husband or the wife to the society of the other spouse is not merely creature of the statute. Such a right is inherent in the very institution of marriage itself” – thus reinforcing the position that the sanctity of privacy is accorded not to the individual, but to the institution of marriage.

Conclusion

Sareetha, undoubtedly, was buried thirty years ago, and cannot be brought back to life. But while a judgment remains in ashes, its arguments can certainly become phoenixes and rise again. Justice Choudary’s insights are relevant for the ongoing struggle against the non-criminalisation of marital rape, against numerous inequitable provisions in personal law codes, and for the continuing efforts to persuade the Court to understand Articles 14 and 15 in structural terms (another, abortive, effort was made in Naz Foundation, which was also overruled). At the very least, Sareetha should not be forgotten: it should remain in historical memory as a landmark of Indian constitutional law, taught and discussed as a brilliant – if unsuccessful – attempt at radically transforming our constitutional jurisprudence of privacy and equality.

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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.

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