Marital rape exemption must go

It is in stark contradiction to the principles of gender equality and personal autonomy.

Earlier this month, the Madhya Pradesh High Court in Manish Sahu vs. State of Madhya Pradesh ruled that a husband cannot be prosecuted under Section 377 of the Indian Penal Code (IPC) for sexual acts committed with his wife.

Section 377 criminalises non-consensual sexual acts that show sexual perversity and depravity of the mind. The court’s decision is based on the premise that Sec. 375 of the IPC, which includes the marital rape exemption, presumes the wife’s consent in a marriage, and sexual acts between a husband and wife—even if they fall under Section 377—are presumed to be consensual.

The court’s finding appears somewhat convincing at first glance, but upon closer examination, the court’s reasoning appears dangerously misplaced. According to the court, if any sexual intercourse or sexual act by the husband with his wife is not considered rape, then the absence of the wife’s consent loses its importance for the purpose of Section 377. Clearly, the decision conflates the offence of rape punishable under Section 375 with the offence of non-consensual carnal intercourse punishable under Section 377.

In 2013, the Congress-led UPA government expanded the definition of rape to include sexual acts involving object and digital penetration. Likewise, Exception 2 to Section 375 was amended to provide that sexual intercourse or sexual acts by the husband against his wife shall not amount to rape. According to the court, if the husband has the wife’s implied, advance consent to sexual intercourse and sexual acts, including sexual acts covered under Section 377, then the husband should also remain immune from prosecution under Section 377.

What the decision overlooks is that Section 377 is not based on the marital status of the accused and does not provide any legal immunity to the husband. The immunity provided to the husband under Section 375 is specific to that section, and cannot automatically extend to Section 377 or any other provision of the IPC. For the purpose of Section 377, consent, if pleaded by the husband, must be proven at trial.

The offences under sections 375 and 377 are distinct from, and independent of, each other and give rise to an independent criminal liability. For instance, the offence under Section 377 requires the prosecution to provide a completely different kind of evidence and produce a different set of facts. While the sexual act may be the same, it gives rise to two different offences. And under Indian law, the bar is being prosecuted twice for the same offence, not the same act.

The marital rape exemption has its origins in a 17th-century statement made by Matthew Hale, former Chief Justice of King’s Bench in England, that “a husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife has given up herself in this kind to
her husband, which she cannot retract.”

While Britain abolished the marital rape exception through a judicial order in 1991, our courts continue to blindly endorse Hale’s reasoning, overlooking India’s international obligations concerning crimes against women and a rich body of jurisprudence relating to personal liberty, sexual and bodily autonomy, and privacy as reinforced by the Supreme Court of India over the last few years. There is nothing in the law to suggest that an advance, implied consent, even if presumed to have been given at the time of marriage, cannot be revoked or withdrawn during the marriage, especially when sexual intercourse or sexual acts are accompanied by brutality, violence, and perversity. Any other interpretation would mean that the wife is reduced to mere animal existence.

The Bharatiya Nyaya Sanhita Act, 2023, which was hastily passed in Parliament last year without debate or proper public consultation, has been touted by the Narendra Modi-led BJP government as one of the most progressive, women-centric reforms in the history of India’s criminal justice system. However, for women facing marital sexual violence, the Act falls short. Not only did Parliament retain the marital rape exemption in the new Act, but it also further expanded the husband’s legal impunity by thoughtlessly deleting Section 377 as a whole.

Over the past few decades, there has been a growing shift from marital union to individualism. Marriage is today considered a partnership of love and affection. In a constitutional democracy, public morality must yield to constitutional morality, and the sanctity of marriage must give way to the sanctity of the human body. Unfortunately, both Parliament and the courts have failed to acknowledge this shift. The issue is currently pending before the Supreme Court, and the sooner it sets the law straight, the better.

(The writer is a lawyer)