In a recent case, Independent Thought v. Union of India and Anr, a division bench of the Supreme Court of India partially read down an archaic exception to the offense of rape, finding that a husband who rapes his minor wife cannot be exempted from prosecution.
Section 375 of the Indian Penal Code, 1860 (IPC) criminalises rape. However, Exception 2 thereto exempts a man who rapes his wife if she is not under fifteen years of age. This colonial-era provision stands in stark contrast with other provisions of the IPC, as well as several progressive legislations that have followed since. For instance, Section 354 of the IPC prohibits sexual offences such as molestation, even if committed by a husband against his wife who is between the ages fifteen and eighteen. The Protection of Children from Sexual Offences Act, 2012 (POCSO) criminalises sexual intercourse with any child (defined as a person below the age of eighteen years) and carves out no exception with respect to marriage. This contrast is in effect a legal anomaly, since Section 42A of POCSO provides that in case of any inconsistency, the provisions of POCSO will have overriding effect.
While Exception 2 was challenged in its entirety in the main petition, the scope of the issue was subsequently limited to girl children aged between fifteen and eighteen years. Therefore, the Court only sought to answer whether sexual intercourse between a man and his wife, aged between fifteen and eighteen years of age, is rape.
Answering this question in the affirmative, the Court’s decision hinged on two crucial reasons. First, Exception 2, to the extent that it applies to children, defies the spirit of several enactments that either prohibit or create impediments to child marriage by legitimizing this regressive practice and thereby also signifying the State’s acquiescence to it. Second, it creates an unnecessary, artificial and arbitrary distinction between married and unmarried girl children, since members of neither class can consent in law, yet husbands who have forcible sexual intercourse with their wives belonging to the former class cannot be penalized. This, the Court held, was an unreasonable classification under Article 14 (right to equality) of India’s Constitution, as it had no rational nexus with any clear objective sought to be achieved. Thus, the Court read down Exception 2 to Section 375 holding that it violated Article 14 (right to equality), 15 (non-discrimination) and 21 (right to life) of the Indian Constitution. As a result, a man who rapes his wife is now exempted only if she is not below eighteen years of age.
However, this judgment marks only a partial victory for those who have advocated long and hard against the marital rape exception. Yet, several observations made in this judgement could be relevant and persuasive for a Bench considering the constitutionality of Exception 2 as a whole in the future. For instance, Justice Lokur noted that the girl child’s right to decline to have sexual intercourse and her bodily integrity, liberty and dignity had been taken away by this exception. He sourced these rights not just from India’s Constitution but also its’ international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women. Crucially, he observed “…she cannot be treated as a commodity having no say over her body or someone who has a right to deny sexual intercourse to her husband.” Though made in the specific context of girl children, these observations remain equally true for adult women. Justice Lokur also cited several decisions from other jurisdictions which hold that a wife is no more the subservient chattel of her husband, and that a rapist remains a rapist regardless of his relationship with the victim. He recorded his strong disagreement with the Centre’s argument that criminalising marital rape could destroy the institution of marriage. These observations would indeed be squarely applicable in a future challenge to the marital rape exception as a whole.
2017 will indeed be remembered as one of the most remarkable years in the history of the Indian Supreme Court’s human rights jurisprudence, given its landmark decsions that declare the triple talaq practice to be unconstitutional and hold the right to privacy as a fundamental right. It is with the hope that this streak will continue that we await the final striking down of the marital rape exception in its entirety.