Supreme Court declares sex with wife below 18 illegal: Legislature must now step up to criminalise marital rape

The Supreme Court has yet again in an historic judgement in the case of Independent Thought vs Union of India, has now criminalised sex between a man and his minor wife. This has resulted in the partial criminalisation of marital rape. The court was hearing a petition filed by an NGO Independent Thought, argued by advocates Gaurav Agarwal and Abhikalp Pratap Singh.

In effect, this now means that the offence of rape will be made out even if the perpetrator is the husband of the victim, but only if the victim is less than 18 years of age. It is pertinent to highlight that a complete strike down of Exception 2 to Section 375 of Indian Penal Code (IPC) is necessary to make a husband criminally liable for raping his wife, for all age groups. This did not happen; the court only read down the provision to increase the age of wife from 15 to 18 years. This exception is literally known as the marital exception to rape.

The court on multiple occasions in the judgement, has stressed the fact that it is refraining from making any observations on marital rape in general. The instant case was very specific in dealing with the issue of marital rape of a minor, primarily because the petition didn’t seek that remedy. Even so, the court quoted a line from the decision of the European Commission of Human Rights, “a rapist remains a rapist regardless of his relationship with the victim”, suggesting that the relationship can be that of a husband and a wife.

File image of Supreme Court. Reuters

File image of Supreme Court. Reuters

However, this verdict has certainly laid down the ground for recognition of marital rape as an offence under Indian Law, in its entirety.

The decriminalisation of marital rape in various legal regimes is due to a very outdated rule known as Hale’s principle. This principle lays down that “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” This was propounded in 1736 by Sir Matthew Hale. There was even a right to whip the wife, which was exercised by the husband at that time. Obviously, the substance of this principle holds no water today. Even the English language in which this principle was propounded has changed since then, but Indian law still sticks to it.

There was also a preposterous doctrine of ‘coverture’ under English Common Law, at that time, which regarded women as chattel or property of the husband. It laid down, that the rights and obligations of a woman, subsequent to marriage, are subsumed by that of her husband.

It is strange that our criminal law, which has been framed on the principles of English Common Law, still gives force to these rudimentary doctrines in some form or the other, when they have been abolished in England itself. The House of Lords of England in the famous case of R v R in 1991, has already recognised the offence of marital rape there, as have most other modern jurisdictions too. It is only through the application of such doctrines, that the decriminalisation of marital rape can be sustained in any legal system.

However, radical changes in law only seldom happen. The law typically evolves very gradually. It is these small steps, in the form of the current judgement, that the law relating to the complete criminalisation of marital rape will develop. The apex court has given a very positive indication that it is not averse to this as well. It refrained from going into this question merely because it wasn’t raised by the petitioner, and no other reason.

It is now imperative that the union government takes up the issue proactively and frames adequate laws regarding the criminalisation of marital rape. The courts alone should not be expected to bring about progressive changes in the laws every time. This is even more important for the issue at hand, that is marital rape.

Having said that, the criminalisation of marital rape needs to be accompanied by relevant changes in the procedural laws as well. It needs to be stressed that marital rape can’t be tried with the same rules of evidence and procedure as is applicable to the usual cases of rape. For instance, the testimony of the rape victim in most cases is sufficient to convict the accused and needs no corroboration. This, when applied to a case of marital rape will necessarily widen the scope of misuse of the law to a great extent.

Even in cases of marital discord, marital rape can be alleged, since there is no corroboration needed, the word of the woman within the four walls of a marital home will be sufficient to convict the husband for marital rape. It is, therefore, very necessary that a corroboration of the testimony of the marital rape victim be required. It can only be done through pertinent amendments to the procedural and evidence law by the legislature.

It is not for a moment being suggested that the courts shouldn’t criminalise marital rape at the first available opportunity. It is, indeed, sooner the better, that the law accords criminal liability to a married man for raping his wife. The transition will certainly be smoother and durable if it is done by the legislature.


Published Date: Oct 12, 2017 03:37 pm | Updated Date: Oct 12, 2017 03:37 pm


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