A division Bench of the Delhi High Court recently delivered a split verdict on whether exception two to Section 375 of the Indian Penal Code, i.e., marital rape exception, is unconstitutional. This exception states that sexual acts by a man with his adult wife are not rape.
The two judgments discuss several important issues in coming to their diametrically opposed decisions. Due to space constraints, I will focus on the analyses in both opinions of the constitutionality of the exception in terms of Article 14 of the Constitution of India (right to equality before the law and equal protection of laws). This right does not absolutely preclude differential treatment of two classes of persons. It seeks only to ensure, simply speaking, that like classes are treated alike.
Editorial | The importance of consent: On marital rape
One of the tests under Article 14 is that of reasonable classification, which has two prongs. First, where two classes of persons (say adults and children) are treated differently, it must be established that they are indeed distinguishable from each other. This is the condition of intelligible differentia. Second, there should be a rational nexus, or logical relationship, between a law which treats the two classes differently (say, by prohibiting children from performing dangerous labour) and the object or purpose of the law (the protection of children).
The intelligible differentia
In this case, the intelligible differentia of marital rape exception is, by agreement, between married and unmarried women. Per Justice Rajiv Shakdher, marital rape exception fails the second condition. The object of the law, he concludes, is to punish certain sexual acts when done without consent. In this view, what defines the wrong of rape is its harmful nature and the lack of consent. To this object, he finds marriage irrelevant. For him, a woman who faces non-consensual sexual acts has been raped, regardless of her relationship with the perpetrator. Since there is no rational nexus between the differentia (married and unmarried women) and the object of the law (punishing non-consensual sexual acts), marital rape exception fails the test of reasonable classification and must be struck down as unconstitutional.
The learned judge rightly observes, furthermore, that in applying this classification test, courts must not lose sight of the substance of Article 14, which is equal protection of laws. In going through the motions of the test, therefore, courts should not validate inequality or discrimination.
Per Justice C. Hari Shankar, though the object of the main provision is, indeed, to punish acts of rape, the object of marital rape exception is to keep the ‘taint’ of the allegation of rape outside the marital sphere, and thereby protect the institution of marriage. In light of this object, he concludes, the differential treatment of married and unmarried women is not unconstitutional. However, no reasons are given as to why, if marital rape is recognised, the institution of marriage would be threatened. The experiences of countries where the offence is recognised give no evidence of a weakening or destruction of marriage or, more importantly, a causation between the ability of wives to prosecute their husbands for rape and the weakening or destruction of marriage. How, then, is the nexus rational?
Circular line of reasoning
Moreover, according to this opinion, all non-consensual sex cannot be considered rape because the marital rape exception takes sexual acts within marriage outside the purview of the offence and label of ‘rape’. Marriage, within which there is a ‘legitimate’ expectation of sex, materially changes the nature of the act in this view, although the opinion does not explain why it is 'legitimate expectation' and not consent which ought to determine the nature of sex in marriage. Surely, as the honourable judge himself affirms, there can be no legitimate expectation of forced sex. Though he agrees that women’s sexual autonomy deserves respect, and any legitimate expectation of sex within marriage ends where her rights to sexual autonomy and bodily integrity begin, he does not think that this means that non-consensual or forced sex within marriage ought to be rape.
This is a circular and inconsistent line of reasoning. The existence of the exception itself upholds the reasonableness and constitutionality of the exception. Consider, if murder was legally defined as intentional killing, and an exception stated that no intentional killing on Mondays would be murder. Would it not be circular, when examining the reasonableness of this exception, to say that it is perfectly valid on the ground that the exception itself removes a class of intentional killings from the ambit of the offence of murder and, therefore, these intentional killings cannot be equated with other intentional killings? Likewise, autonomy (meaning self-governance) is axiomatically antithetical to force. If I can be forced or otherwise compelled to do what is against my will or without my consent by another, my right to self-govern is extinguished. Marriage has nothing to do with this.
A negation of autonomy
On such a line of reasoning, the honourable judge makes a seriously problematic assertion: that rape by a stranger is worse than rape by a husband. The assertion flattens the diversity of experiences of rape survivors without an iota of evidence in its support. Non-consensual or forced sex within marriage may be culturally normalised and legally validated, but there is no forgone conclusion that marriage makes the experience of ‘non-consensual/forced sexual acts’ less wrong or harmful. In fact, forced sexual acts by a person who is meant to love you and who has constant access to your body because of the proximity of marriage, can be worse. The physical violation can be aggravated by breach of trust, fear of continuing violation of bodily integrity and the perversity of being in an intimate relationship with a person who wilfully negates your sexual autonomy.
The consequence of this split verdict is a legal stalemate. We can only hope now, that the matter will be resolved by the Supreme Court of India, or preferably by Parliament itself.
Shraddha Chaudhary is a PhD Student at the Faculty of Law, University of Cambridge and Lecturer, Jindal Global Law University, O.P. Jindal Global University, Sonipat