Legalised violation?

In the late Middle Ages, an intellectual tradition known as querelle des femmes (French for “the debate about women” or “the woman question”) emerged as a forum for discussing prevailing ideas about women’s nature, status, and social position. The debate encompassed a wide range of questions concerning women’s moral and intellectual capacities, their place in society, and their relationship with men.Centuries later, some of these questions continue to animate legal discourse in jurisdictions historically and geographically distant from the debate’s origins. In India, for example, questions surrounding married women’s sexual autonomy have once again come to the fore as the legality of the marital rape exception (MRE) returns to the courts. This is a controversy with a long history and whose intellectual roots can be traced all the way back to 17th-century England, when querelle des femmes were flourishing in European intellectual circles.For the uninitiated, the MRE is a provision under Indian criminal law that exempts a husband from prosecution for the offence of rape committed against his wife, provided she is 18 years of age or older and they are cohabiting. It was first incorporated into the Indian Penal Code in 1860 under the British colonial rule and has survived successive amendments to India’s criminal law since.Marital rape debate reaches Supreme Court: Can husbands be prosecuted under existing law?India one of few democracies overlooking marital rape: Shashi TharoorThe MRE is commonly traced to the writings of Sir Matthew Hale, a 17-century English jurist who, in a posthumously published 1736 treatise, asserted that a husband could not be guilty of raping his wife because, through their “mutual matrimonial consent and contract”, she had supposedly surrendered her right to withdraw sexual consent after marriage. This philosophical assertion eventually became a foundational justification for the common-law doctrine exempting husbands from prosecution for marital rape in jurisdictions around the world.As Indian courts hear a batch of petitions challenging the present-day constitutional validity of the MRE, it bears repeating that the exception raises serious concerns about married women’s fundamental rights. It also sits uneasily with the social reality of a country that continues to grapple with routine cases of sexual violence against women and girls.Yet, two aspects of the debate have received comparatively little attention. The first is what the state’s insistence on retaining the MRE reveals about its understanding of marriage; and the second is what the continued existence of the MRE suggests about the contradictions within Indian constitutional jurisprudence on sexuality.“Protecting” marriageIn an affidavit filed before the Supreme Court in October 2024, the Union government defended the retention of the MRE. The affidavit repeatedly invoked the potentially “far-reaching” consequences of criminalising marital rape, including the possibility of misuse.Underlying these concerns was the apprehension that criminalising marital rape could “unsettle” the husband–wife relationship. Similar anxieties about the institution of marriage surfaced during the 2023 litigation over the legal recognition of same-sex marriages. In its March 2023 affidavit opposing such recognition, the Union government argued that marriage was a “sacrament, a holy union and a sanskar”, and therefore held that recognising same-sex relationships would depart from marriage’s established socio-cultural foundation.Continued existence of marital rape exception highlights the contradictions within Indian constitutional jurisprudence on sexuality.The conception of marriage reflected in these submissions is not only heterosexist and patriarchal but also historically inaccurate. In their ground-breaking work, Same-Sex Love in India: Readings from Literature and History, scholars Ruth Vanita and Saleem Kidwai document a rich history of same-sex love and intimacy in the Indian subcontinent.Beyond this, they also show that the legal regulation of sexuality in contemporary India continues to bear the imprint of British colonial rule. From the criminalisation of same-sex intimacy under Section 377 of the Indian Penal Code to the existence of the MRE itself, these legal frameworks are colonial vestiges that are, ironically, refashioned as “sanskaari” in modern times.The MRE affidavit reveals a related, if not more troubling, dimension of the state’s myopic vision of marriage: the suggestion that preserving the marital relationship takes precedence over extending to married women the same protection against rape under criminal law afforded to unmarried women.Also striking is that both the National Commission for Women and the Ministry of Women and Child Development supported retaining the MRE. Among other things, they invoked the purportedly sui generis nature of marriage, reasoning that its distinctive status as an socio-legal institution warranted safeguarding its stability against potential disruption posed by rape allegations between spouses. That two national-level bodies specifically tasked with protecting and advancing women’s rights would endorse such a regressive position on marriage should deeply concern every Indian.Uneasy jurisprudenceBut what of the courts? The judiciary has remained divided on this question for years, with judges even on occasion disagreeing over the constitutional validity of the MRE while sitting on the same High Court bench. While the matter remains sub judice before the Supreme Court, it is worth reiterating that fundamental rights should not disappear the moment a woman crosses the marital threshold.Marriage may well be a sui generis institution, but its distinctive status cannot justify denying married women the right to seek the criminal law’s protection against rape simply because their alleged assailants happen to be their husbands. That a doctrine rooted in the reasoning of a 17th-century English jurist continues to inform Indian criminal law today is difficult to reconcile with the Indian Constitution’s contemporary commitments to equality and dignity for all persons, irrespective of sex.This contradiction becomes all the more pronounced when viewed against the constitutional developments of the past decade, including the decriminalisation of consensual same-sex intimacy in Navtej Singh Johar v. Union of India (2018), the decriminalisation of adultery in Joseph Shine v. Union of India (2018), and the Supreme Court’s recognition in Supriyo @ Supriya Chakraborty v. Union of India (2023) of the right to form intimate relationships free from state coercion.Taken together, these decisions reflect an evolving and more mature constitutional engagement with questions around sexuality, desire, and individual autonomy vis-à-vis the law. Therefore, to retain the MRE against such a jurisprudential backdrop would be to perpetuate a kind of constitutional anachronism that would be at odds with the very principles that underpin contemporary legal understandings of gender and sexuality. That the MRE needs to go is a given; when and how, though, remains to be seen.

Source: Deccan Herald