Opinion: For full equality of women, marital rape exception must go

Out of the two opinions, the judgment by Justice Shakdher clearly holds that the marital rape exception in Section 375 of the IPC is violative of women’s fundamental rights under Articles 14, 15, 19(1)(a) and 21 and that it should be removed.

The judgment by Justice Hari Shankar held that the marital rape exception in Section 375 does not violate the right to equality of married women and this is the opinion that I am going to discuss. The Court holds that: “She has, nonetheless, by her decision to marry the man, given, to him, the right to expect meaningful conjugal relations with her. If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove (of) the act, it cannot be equated with the act of ravishing by a stranger… Disagreements, in married life, are but natural and on occasion, may even lend strength to the marital bond. These disagreements could also extend to the bedroom. A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined.” Thus, the refusal of a woman to have sex with her husband is seen as a mere disagreement in the bedroom which need not be taken seriously.

The dominant manner in which our courts have been framing theories of equality and equal protection of the laws under the Constitution has been inadequate, and this has muted the force of the constitutional challenges to the marital rape exception. As argued by Robin West in her 1990 article on marital rape exceptions in the US, formal equality theories have skewed and limited our understanding of how we should make the promise of equal protection of the laws a reality.

Article 14 of the Constitution states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. A test of Article 14 has been that any classification in legislation must be based on some “intelligible differentia”, which must have a rational nexus with the object sought to be achieved by the legislation. This test of “intelligible differentia” is based on the formal theory of equality that likes must be treated alike and unequals should not be treated similarly. By relying on this test, Justice Shankar held that the distinction between married and unmarried women was a reasonable classification and hence, the exception to treat married women differently within rape law was valid as the aim of the legislation was the protection of the institution of marriage.

Relying on such a test takes no account of the unequal impact of this legislation on married women. It is for this reason that the formal theory of equality has been rejected and courts have evolved a framework of substantive equality. Where a distinction is created for any class of persons, it would amount to discrimination if it perpetuates prejudice or stereotyping, which leads to disadvantages. By making an exception to sexual assault within marriage, the role of women within marriage is based on stereotypes that subordinate women into specific sex roles at home, thereby denying them any individual freedom or dignity. In the Joseph Shine case, which was a challenge to the criminal offence of adultery, the Supreme Court held that Section 497 was a provision steeped in stereotypes about women and their subordinate role in marriage. A reliance on substantive equality would, therefore, require us to ask whether making an exception for such a separate class of women who are married furthers the subordination of women vis-à-vis men. Asking such a question would reveal that the marital rape exception would amount to discrimination and a violation of the right to equality.

One of the grounds for justifying the exception by the court was that marriage is an institution which “reflects complete emotional and psychological unity between the man and the woman”. The reality is far from this. The National Family Health Survey-5 states that 29.3 per cent married women experience spousal physical and sexual violence. This shows that a third of the marriages in our country are structures of violence for women. Further, a claim that non-consensual sexual intercourse by a husband would cause less anguish to women than by total strangers is a myth. Almost 90 per cent of cases of sexual assault faced by women are by known persons and the impact of known persons committing sexual violence is far more than a crime committed by a stranger.

Finally, does the exception give married women “equal protection of the laws”, which the right to equality promises? Does not the “equal protection of the law” under Article 14 minimally guarantee equal protection to women under the Indian Penal Code against sexual assault, regardless of their marital status? By denying such equal protection, solely on the ground of gender and marital status, women are not recognised as rights-bearing persons within the marriage who ave equal protection of laws against violent sexual assault.

The object of the State in enacting Section 375 is not to protect marriages, but to protect all women against violent sexual assault. This constitutional fight must lead to the abolishment of all remnants of the marital exemption if we want full equality for women.

This column first appeared in the print edition on May 24, 2022 under the title ‘No case for exception’. The writer is executive director, Centre for Law & Policy Research, Bengaluru