- Shraddha Chaudhary*
In Independent Thought v. Union of India, a division bench of the Supreme Court of India read down Exception 2 to Section 375, Indian Penal Code (hereinafter, IPC), which now stands thus altered,
“Sexual intercourse by a man with his wife, the wife not being less than 18 years of age, is not rape”.
Responses to the decision have been mixed, though the general consensus appears to be that the decision raises as many issues about child sexual abuse and child marriage as it clarifies regarding marital rape of minor wives.
On one point, however, the Supreme Court was categorical: that the decision would not apply to marital rape of adult women (hereinafter, marital rape simpliciter). The Court stated,
“We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all. Therefore we should not be understood to advert to that issue even collaterally.”
Yet, in addressing the contentions of both sides, the Supreme Court has laid the groundwork to have the exemption to marital rape declared unconstitutional. First, the Supreme Court considered international instruments to which India is a signatory, such as the Convention on the Rights of the Child (CRC) and the Convention for the Elimination of all forms of Discrimination against Women (CEDAW). Since the marital rape exemption legitimized the practice of ‘child marriage’, it was found to be in contravention of the obligations imposed by these instruments. Secondly, the Exception was found to be derogatory of Article 14 and 21, and therefore, unconstitutional. Thirdly, it was observed that the exemption was inconsistent with other laws in force, and also created internal contradictions within the IPC. Finally, it was held that the social impact of child marriage, which was legitimized by the marital rape exemption, was too great to let the exemption stand on the statute book. In this piece, I shall seek to demonstrate how each of these arguments applies mutatis mutandis to marital rape simpliciter.
India’s International Obligations
The Supreme Court referred to several national and international studies detailing the harms of child marriage. Reference was also made to the CRC and other international treaties which obligate the state to prioritize the best interest of the child, an obligation violated by Exception 2 to Section 375, IPC. Since most of these studies and international instruments focus on child marriage and offences against children, they would not be applicable to marital rape simpliciter.
However, the Supreme Court also referred to the In-depth Study on all Forms of Violence against Women submitted by the Secretary-General of the United Nations to the General Assembly, and the CEDAW. The Court relied on the Study to highlight the point that early marriage was a harmful traditional practice. Given the persuasive value attached to the Study by the Court, it must be noted that it also refers to marital rape as a specific form of violence against women which ought to be criminalised. Similarly, reference was made to Article 16.2 of the CEDAW, which provides, “The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.” In citing this provision, the Court sought to draw attention to the obligation imposed by CEDAW to end child marriages. It was noted that non-consensual sexual intercourse by a husband with a child-bride “would amount to a violation of her human right to liberty or dignity embodied in international conventions accepted by India such as the Convention of the Rights of the Child and the Convention on the Elimination of all forms of Discrimination against Women.” In doing this, the Court equated the obligation placed on the state by both conventions.
Clearly, then, other provisions of CEDAW ought to be viewed with the same gravitas. Article 16(g) of the CEDAW obligates state parties to ensure that women do not suffer discrimination within marriage, especially in the exercise of personal rights. The right to consent, or indeed, refuse consent, to sexual intercourse is inherent to a person’s bodily integrity and sexual autonomy. Therefore, it is a fundamental personal right, deserving of protection from the state.
Constitutionality of the Marital Rape Exemption
It was held that there was no discernable object behind the distinction between “married” and “unmarried” minor girls. Even if there were an object, the Court added, there was no rational nexus between the marital status of a minor girl on the one hand, and the “unclear object” on the other. The classification was, therefore, held to be arbitrary, and violative of Article 14. It is difficult to understand how this rationale can be limited to minor girls alone. There is no discernible object behind classifying women into “married” and “unmarried” when considering their right to refuse consent to sexual intercourse. A woman cannot be deemed to have implicitly consented to sexual intercourse with her husband simply by virtue of marriage. In fact, the same sentiment was expressed by the Supreme Court, which held,
“It must be remembered that those days are long gone when a married woman or a married girl child [not just a married girl child] could be treated as subordinate to her husband or at his beck and call or as his property. Constitutionally a female [not just a minor female] has equal rights as a male and no statute should be interpreted or understood to derogate from this position. If there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished.” [Emphasis added]
It was further held that the exception contravenes the fundamental right of a girl child under Article 21 to live a life of dignity.
“The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC. Her husband, for the purposes of Section 375 of the IPC, effectively has full control over her body and can subject her to sexual intercourse without her consent or without her willingness since such an activity would not be rape.”
The “traditional practice” being referred to above is child marriage. The IPC sanctified this practice by allowing the husband of a girl child to have sexual intercourse with her, regardless of her consent, provided she was not under the age of 15. The harm identified by the Court is that the right of the girl child to maintain her bodily integrity is destroyed when her husband is given full control over her body, thereby reducing her to nothing more than his property. By denying a whole category of women the right to refuse consent to sexual intercourse with their husbands, merely by virtue of being married, the IPC similarly destroys the right of this category of adult women to their bodily integrity. Thus, the basis of the violation of Article 21, as identified by the Court itself, is applicable equally, and in the same way, to adult married women, as it is to child brides.
Additionally, it was held that the exception contravenes Article 21 by taking away the girl child’s right to make her own reproductive choices. This is a harm more directly attributable to child marriage, and only incidentally to the exception which legitimizes the practice. Marital rape of a major woman may, similarly, result in a pregnancy, which the woman may be forced to carry to term. This would also be a contravention of her right to reproductive choice, but no more, perhaps, than if a man were to force a woman to carry his child, conceived after consensual sex. In other words, it is not the act of marital rape which contravenes the reproductive choice of a woman, but forcing her to carry the child to term, or preventing her from aborting the foetus.
Inconsistency with other Laws
The Supreme Court observed that the marital rape exemption was inconsistent with other laws such as the Protection of Children from Sexual Offences Act, 2012 (hereinafter, POCSO Act), and the Protection of Women from Domestic Violence Act, 2005 (hereinafter, PWDVA), which criminalise non-consensual sexual intercourse with a minor, and sexual abuse, respectively.
It was also held that the exemption made the IPC internally inconsistent, since non-consensual, non-penetrative sexual acts by a man with his wife continue to be criminally punishable.A girl under the age of 18 is incapable of consenting to sexual activity or intercourse as per legislations other than the IPC, notably the POCSO Act. The POCSO Act, in fact, specifically makes sexual intercourse with a minor, by a person related to her by marriage, an aggravated offence under Section 5. The Exception to Section 375, IPC, which presumed a girl child’s consent merely because she is married, was therefore held to be in conflict with the POCSO Act.
If the law is anomalous for presuming the consent of girls who are legally incapable of consenting, it is equally contradictory if it disregards the lack of consent of women who are legally capable of consenting. The Criminal Law (Amendment Act), 2013 defined consent to mean unequivocal voluntary agreement, or a communication that conveys willingness, to participate in a specific sexual act. This means that consent to one sexual act does not extend to other acts, and consent to sexual acts with a person on one occasion does not remain valid after the said occasion. Therefore, it cannot be presumed that by virtue of having consented to marry a man, his wife thereby implicitly consents to let him have sexual intercourse with her for as long as they remain married.
Similarly, under Section 3(a) of the PWDVA, the definition of ‘domestic abuse’ includes “causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse” (emphasis added). Sexual abuse, in turn, is defined as “any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. Clearly, sexual intercourse without consent would fall squarely into this definition. Since the PWDVA does not apply specifically to child brides or minors who are in domestic relationships, but to all women who are married, or in relationships in the nature of marriage, this contradiction also extends to marital rape simpliciter.
It was further noted that the marital rape exemption makes the IPC internally inconsistent. While sexual intercourse by a man with his wife is exempted from the ambit of rape, lesser sexual offences such as outraging the modesty of a woman, or sexual harassment, would be criminally punishable even when committed by a man against his wife. Thus, a man would not be criminally liable for vaginally penetrating his wife with his penis, without her consent, but could be prosecuted for kissing her without her consent. This absurdity, needless to say, has little to do with the age of the wife, and would arise even if she were above the age of 18.
A large part of the judgement in Independent Thought is dedicated to child marriage and its resultant evils. The Supreme Court observed that the exception, as it relates to minor girls, seeks to legitimize the practice of child marriage, since child marriage inevitably entails sex with the minor bride. As a consequence, it also condones the negative effects child marriage has on the girl child, on any prospective children, and on society at large. While a number of these evils, such as the loss of reproductive choice, or the destruction of confidence and self-esteem, would also apply to victims of marital rape simpliciter, certain ills of child marriage may not. For instance, child birth may not take the same physical toll on a woman who is above the age of 18 compared to a child bride, and may not, therefore, have the intergenerational effect of producing malnourished children. However, irrespective of her age, a woman who is raped by her husband may suffer serious mental and emotional trauma. If she were also forced to bear his child, her trauma and injury would certainly reflect in the way the child is reared.
Another argument commonly made against criminalising marital rape is that it would ‘destroy the institution of marriage’. This argument was orally made by the respondents in Independent Thought, the Union of India, adverting to the 167th Report of the Parliamentary Standing Committee of the Rajya Sabha (presented in March 2013). Interestingly, the report itself refers to marital rape simpliciter, and not of minor girls alone. The Supreme Court categorically rejected this contention with the following observations,
“The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable.” [Emphasis added]
Though the Court demolished the argument of the respondent in the context of the marital rape of minor girls, their response was addressed to the nature of marriage, the idea of an ‘institution of marriage’, and the effect of laws on them. Therefore, the scope of the response can, by no means, be limited only to marital rape of girls under the age of 18.
It is clear that the question before the Supreme Court was not the recognition of marital rape simpliciter as a crime. However, in deciding the constitutionality of Exception 2 to Section 375, IPC as applicable to minor girls, the Court has inevitably made observations, or relied on grounds, which are applicable to the larger problem of marital rape. The groundwork to have the exemption declared unconstitutional in its entirety has already been laid. All that remains is for someone to pick up where Independent Thought left off.
*Shraddha Chaudhary, B.A., LL.B. (Hons.), National Law School of India University. The author is currently employed as a legal researcher at the Centre for Child and the Law, NLSIU. The views expressed are personal. The author would like to thank her mother, Mrs. Sheila Chaudhary, and a dear friend, Mr. Shreedhar Kale, V Year, B.A., LL.B. (Hons.), NLSIU, for their feedback on the first draft. She also expresses her gratitude to the editorial team of SLR, particularly Mr. Shubham Jain, V Year, B.A., LL.B. (Hons.), NSLIU, for his insightful comments.
 Independent Thought v. Union of India, W.P. (Civil) No. 382 of 2013, decided on October 11, 2017 (Madan B. Lokur and Deepak Gupta JJ) (hereinafter, Independent Thought).
 Enakshi Ganguly, SC Resolves Age Consent Issue but may have opened a Can of Worms, The Print (Oct. 11, 2017) https://theprint.in/2017/10/11/sc-resolves-age-consent-issue-may-opened-can-worms/; Saumya Maheshwari, Questioning the Assumptions of the Supreme Court’s Decision on Adolescent Marital Rape, Socio-Legal Review Forum (Oct. 14, 2017) http://www.sociolegalreview.com/questioning-the-assumptions-of-the-supreme-courts-decision-on-adolescent-marital-rape/.
 Independent Thought, p.2, para 2.
 Independent Thought, pp. 13-14, para 15.
 Independent Thought, pp. 25-26, para 40.
 In-depth Study on all forms of Violence against Women, presented by the Secretary General of the United Nations to the General Assembly (July 6, 2006) https://documents-dds-ny.un.org/doc/UNDOC/GEN/N06/419/74/PDF/N0641974.pdf?OpenElement.
 Independent Thought, p. 22, para 33.
 Article 16, Convention for the Elimination of all forms of Discrimination against Women, 1981: “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation”
 Article 14, Constitution of India, 1950: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
 Article 21, Constitution of India, 1950: No person shall be deprived of his life or personal liberty except according to procedure established by law.
 Independent Thought, p. 52, para 82.
 Independent Thought, p. 56, para 88.
 Independent Thought, pp. 29-31, paras 47-50.
 Independent Thought, p. 22-23, para 34.
 Independent Thought, p.22, para 32.
 S. 5(n), Protection of Children from Sexual Offences Act, 2012: Whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or living in the same or shared household, commits penetrative sexual assault on the child is said to commit aggravated penetrative sexual assault.
 Explanation II, S. 375, Indian Penal Code 1860, as amended by the Criminal Law (Amendment) Act, 2013.
 Explanation I(ii), S. 3, Protection of Women from Domestic Violence Act, 2005.
 Other forms of penetration, whether consensual or otherwise, would be criminal under S. 377, Indian Penal Code, 1860, in any case.
 Independent Thought, p. 57-58, para 90.