Victorian puritanism and marital rape

Recently, a noteworthy judgement was delivered by a Lahore session court in Pakistan. The accused husband was held guilty of coercing his wife into engaging in unnatural sex with him, a violation punishable under Section 377 of the Pakistan Penal Code, 1860. This marks the first marital rape conviction in the Sindh province of Pakistan. In India, the Supreme Court is currently hearing a matter pertaining to the marital rape exception to Section 376 of the Indian Penal Code, 1860, in Hrishikesh Sahoo vs State of Karnataka. The court will essentially try to answer whether the marital rape exception denies married women equal status as men in marital institutions. Does the exception violate the right to privacy and bodily integrity?

The legitimization of the marital rape exception in the Indian subcontinent has a colonial legacy, initially incorporated into the legal framework with the codification of the Indian Penal Code, 1860. This exception reflects the notions of biblical morality and Victorian puritanism that enjoyed societal acceptance and regal patronage. In the Victorian era, women were viewed akin to property like cattle, crops, or land, considered to be an ‘estate’ of the father prior to marriage and of the husband after the marriage. Women were deprived of individual liberty and freedom of choice. This perspective is rooted in the doctrine of coverture as propounded by Matthew Hale, which enunciates that upon marriage, the identity of the wife has merged with that of the husband. This understanding of marriage clashes with modern constitutional jurisprudence, which provides for marriage as a union of two equal partners with a certain level of individual autonomy. Further, the Supreme Court in XYZ vs State of Gujarat held that the right of a woman to have complete authority over her own reproductive choices is a necessary precondition for dignified existence.

In Joseph Shine vs Union of India, the court observed how treating husband and wife as “one in flesh and blood” not only compromises the wife’s sexual autonomy but also denies her ownership of property, the ability to enter into contracts, pursue education without the consent of the husband, or receive a salary. When all other facets of the common law doctrine of coverture have been held to be archaic, so should be the marital rape exception. Even the recently enacted Bharatiya Nyaya Sanhita, 2023, which claims to liberate the Indian criminal justice system from colonialism, retains this exception verbatim.

Another argument favouring the exception pertains to non-intervention by the State in matters relating to family and marriage. However, legal intervention for gender or social justice has been accepted when necessary. The Protection of Women from Domestic Violence Act 2005 was passed to criminalise any act causing physical, mental, emotional, economic, or sexual violence unleashed upon the woman within the four corners of the household by the family members of the husband. However, by virtue of the marital rape exception, one of the gravest forms of violence, committed by the closest and most intimate member of the family, has been shielded from criminal liability.

J Lorbera argues that the practice of men exercising control over women’s bodies is rooted in the patriarchal understanding of the subordination of women to men. In countries like Ethiopia with oppressive practices like Telefa, sexual violence has been considered a legitimate way of establishing the marital relationship itself and thus connecting it directly with exercising control over her bodily autonomy. The French social theorist, philosopher, historian, and public intellectual Michel Foucault has pointed out societal norms where girls have been taught to be submissive and docile, leading to their economic disempowerment, which provides fertile ground for control and subordination.

Recently, in Rudra Narayan Ray vs Piyali Ray Chatterjee, the Jharkhand High Court observed that in a matrimonial relationship, it is the duty of the wife to be an affectionate companion, confidant, social secretary of her husband, and a good sex partner. Even this understanding of a wife’s role in marriage cannot be used to justify the marital rape exception. Rape is an aggravated form of violence. Her non-abidance cannot be a justification to subject her to sexual violence at the hands of her husband. As the Karnataka High Court has observed in Hrishikesh Sahoo vs State of Karnataka, “Such acts of husbands scar the soul of the wives.” There should be no place for any statutory justification to cause psychological and physiological trauma to women.

(The writers are convenors at the Centre for Research in Governance, Institutions, and Public Policy, National Law University, Jodhpur)