While Indian rape laws have been amended several times, most notably after the infamous Tukaram v. State of Maharashtra, and more recently after the Delhi gang-rape in 2012, one particularly contemptible colonial vestige has managed to survive these amendments. This is Exception 2 to Section 375 of the Indian Penal Code, often referred to as the marital rape exception.
It is pertinent to bear in mind at the outset that, in the recent past, there has been a significant shift in the attitude of the Supreme Court towards criminal provisions of law based on Victorian-era morality. The reading down of Section 377 as unconstitutional, entirely striking down Section 497 bear testament to the current attitude of the Supreme Court, which is at stark odds with that displayed in the notorious Suresh Kumar Koushal v. Naz Foundation in 2013. Indeed these cases quite clearly indicate that the marital rape exception, which is undoubtedly premised on Victorian morality, is living on borrowed time, until challenged.
Through this article, I seek to argue that the marital rape exception is unconstitutional, since there is a clear violation of Article 14.
The Exception Vis-A-Vis Article 14 of the Constitution
Exception 2 to Section 375 of the Indian Penal Code states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” While non-consensual sexual intercourse by a man with a woman who is not his wife is rape, non-consensual sexual intercourse by a man with (a woman who is) his wife is not rape, due to the exception. Hence, the latter is not punishable under Section 375 of the Indian Penal Code. The exception thus creates a classification on the basis of marital status. Consequently, the exception must be tested on the touchstone on Article 14.
To pass the test of Article 14, the classification must be based on an intelligible differentia and must bear a rational nexus to a legitimate State objective. However, the exception fails all the requirements.
The basis of the classification, as mentioned earlier, is marital status. Thus, the question that needs to be answered is if marital status constitutes intelligible differentia, and bears a rational nexus to the objective of the Act, in the present context.
The law on this is clear: the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others. Here, the married women form one group and the unmarried women form another. As noted earlier, the protection of Section 375 is not extended to the group of married women. The question to be answered now is whether the differentia of marital status is valid to deprive the protection of Section 375 to a class of women?
The offence of rape, under Section 375, belongs to Chapter XVI: Of Offences Affecting the Human Body. For any offence under this Chapter, marital status is not recognised as valid intelligible differentia. Section 304B, which also belongs to the class of offences affecting the human body, explicitly rejects marital status as an intelligible differentia, and to the contrary, creates a presumption against the husband, subject to the fulfilment of certain criteria.
Similarly, there are no exceptions to Sections 354(A) to 354(D), in favour of the husband. Section 377 also does not create an exception in favour of the husband. While it might be argued that Section 304(B) (and the related Section 498A) was introduced for a specific purpose, that is, to deter dowry deaths, and are hence outliers, no such claim can be raised in the context of the other sections of the Chapter.
Thus, the structure of the IPC does not permit marital status to be the basis of classification for any offence affecting human body, and the emergent norm is clear that whenever the question of the human body, the consideration of marital status is not relevant to deny the protection of criminal law to a class of persons. However, exception 2 to Section 375 is in contravention to this, inasmuch as it creates a classification based on marital status and accordingly, deprives the protection of law to a group of women, based on such classification. Thus, the classification is not based on valid intelligible differentia.
Further, even if the previous argument were not to find favour with one, it can be argued that objective sought to be achieved is illogical and thus, not a legitimate purpose. Under the current position of law, the objective invoked by the State shouldn’t be illogical, unfair and unjust. In simpler terms, it should be a legitimate purpose. When in Independent Thought v. Union of India, the exception was read down to exclude married women between the ages of 15 and 18 from its ambit, the State, though in vain, invoked the objective of “preservation of the institution of marriage,” to be the legitimate purpose behind the exception. The Court, in that instance, very explicitly rejected the avowed objective to be legitimate purpose, stating that “marriage is not institutional but personal in nature.” The Court then went to the extent of stating that “nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable”. The Court differed in its approach to the very characterisation of the nature of marriage. The Court, in contradistinction to the State’s characterisation of marriage, held that the nature of marriage is personal, thus precluding the state from ever successfully invoking the objective. Therefore, the argument that the exception is justified in its existence to preserve the institution of marriage falls flat in the preliminary stage itself, since the very premise of the avowed objective – that marriage is institutional in nature – has been rejected. Thus, the objective sought to be achieved is not a legitimate purpose.
Even if one were to assume otherwise and deem ‘preservation of the institution of marriage’ to be a logical and legitimate purpose, it still has to be proven that there exists a rational nexus between the classification and the objective. The law is clear that the classification must rest on a difference which bears a fair and just relation to the object sought to be achieved by the classification. The final argument rests on the point that there exists no rational nexus to the objective. The state’s argument can be summarised thus: the criminalisation of non-consensual sexual intercourse would lead to the destruction of the institution of marriage. It is to be noted that the operative and the underlying logic of this argument is that the institution of marriage will be destroyed if a significant part, content, constituent, or purpose of the marriage is criminalised. In this particular instance, that significant part is sexual relations within a marriage, which, if criminalised would destroy the institution of marriage. Thus, in simpler terms, this argument holds that if sexual relations – albeit non-consensual – within a marriage– are criminalised, the institution of marriage will be destroyed since sexual relations are a significant part of the marriage. However, the more forceful argument is that the State’s argument is specious since the link drawn by the state’s argument between criminalisation and destruction of institution of marriage is untenable. The Supreme Court, in the case of Saroj Rani v. Sudarshan Kumar, has rejected the premise of the previous argument – that sexual intercourse forms the summum bonum of marriage. The Court by holding that sexual relations between a husband and his wife do not constitute the whole content of a marriage, and that remaining aspects of matrimonial consortium can’t be said to be wholly unsubstantial or of trivial character puts to rest the state’s argument in this case. Further, it can also be argued that there is no fair and just relation in this case, since the exception clearly does not take into the account physical and emotional trauma caused to the wife due to the commission of rape, possibly even repeatedly. And thus, there exists no rational nexus to the objective sought to be achieved.
In light of the aforementioned, it is clear that the exception in question fails the reasonable classification test, and thus, is violative of Article 14 of the Constitution and unconstitutional.
 Lelenya Weintraub Siegel, The Marital Rape Exemption: Evolution to Extinction, 43 CLEV ST. L. REV. 351 (1995) < https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1610&context=clevstlrev>; see also Rebecca M. Ryan, The Sex Right: A Legal History of the Marital Rape Exemption, 20 LAW & SOCIAL INQUIRY No. 4 941, 948-954 (1995) < https://www.cambridge.org/core/journals/law-and-social-inquiry/article/sex-right-a-legal-history-of-the-marital-rape-exemption/15B4BC0F145FC41B6E53C25C69701FAE>
ABOUT THE AUTHOR
Maladi Pranay is a 2nd year law student, pursuing BA LLB (Hons.) at NALSAR University of Law, Hyderabad. He enjoys reading, and watching and playing cricket in his free time.