Ed Note: The article presents a constitutional argument against marital rape, grounded in the anti-stereotyping principle. It attempts to answer a persistent question in the marital rape debate – what comes next after striking down Exception 2?
Over the last month, the Delhi High Court has heard extensive arguments on the constitutionality of the marital rape exception. The exception has predominantly been challenged on the basis that it violates the rights of married women under Articles 14, 15, 19 and 21 of the Constitution of India (‘Constitution’). In response, the State has argued that the exception does not compel the wife to have sexual intercourse, and that women have other remedies under law. In Part I of this post, I present a constitutional argument against the marital rape exception, grounded in the anti-stereotyping principle. More importantly, in Part II, I attempt to answer a persistent question in the marital rape debate – what comes next?
Sections 375 and 376 of the Indian Penal Code (1860) (‘IPC’) criminalise non-consensual penetrative and non-penetrative sexual intercourse by a man with a woman. Exception 2 to Section 375 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being fifteen years of age, is not rape”. Thus, the marital status of a woman becomes a defence to rape perpetrated by her husband. Exception 2 has divided the Indian judiciary, with several High Courts offering contrasting opinions on its validity. The Chhattisgarh High Court held that even a forcible sexual act by the husband upon his wife would not constitute rape. On the other hand, the Gujarat High Court observed that the differential treatment of marital rape violates the principle of equal protection of laws. Recently, a Division Bench of the Kerala High Court went on to hold that marital rape constitutes a valid ground for divorce, as it amounts to ‘physical and mental cruelty’ by the husband.
However, the Supreme Court of India (‘SC’) has declined to decide this question on several occasions. This is particularly puzzling, given that the SC has previously recognised the sexual autonomy and reproductive choices of women as a component of their right to personal liberty under Article 21 of the Constitution. One may have presumed that the marital rape exception would fall foul of this reasoning as well. In fact, in Independent Thought v. Union of India, wherein the SC read down Exception 2 and criminalised marital rape against a wife below 18 years of age, Justice Lokur emphasised on the rights of a girl child to bodily integrity and reproductive choice under Article 21. However, the ‘larger issue’ of marital rape was explicitly left open by the bench.
Various justifications have been offered in support of the exception over the years. First, as per Sir Matthew Hale’s treatise on common law – a woman consents to sexual intercourse when she enters into a contract of marriage, and such consent cannot be retracted thereafter. Second, the ‘modern’ and practical justification for the exception is that vindictive women will abuse the provision to exact demands from their husbands. Third, there is a sacramental and religious dimension to marriage in India, which has been entrenched into law through the codification of personal laws and customs into statutory law. This dimension conserves the sexual entitlements of men within the marriage. For instance, a Hindu man can enforce his religious “entitlement” to conjugal rights in a court of law, through provisions in the Hindu Marriage Act which enable the restitution of conjugal rights. While the justifications may vary, the crux remains the same — the act of marriage provides legal and social approval to non-consensual sex. The position of marital rape is so staunchly preserved that the Law Commission of India has remarked that removing the exception would constitute “excessive interference with the marital relationship” itself.
The Constitutional Question: Applying Anti-Stereotyping Principle
There are two well-established constitutional arguments against Exception 2. First, the exception violates a woman’s right to privacy and sexual autonomy under Articles 19 and 21. However, Articles 19 and 21 are subject to certain ‘reasonable restrictions’, which include justifications such as morality and decency, and ‘procedures established by law’, respectively. These justifications have time and again been used to endorse the regulation of sexual autonomy and morality. Second, under Article 14, one may argue that a classification based on marital status, in this context, bears no rational nexus to the object of decriminalising non-consensual sex. Whether married or unmarried, a woman has been raped. However, married women are already treated differently in other contexts, including cases of economic benefits, civil rights, and inheritance laws. This may mean that the courts may be inclined to accept the State’s classification in this case as well, given the deferential nature of the ‘reasonable classification’ test.
Even so, the legal framework under Article 14, 19 and 21 has evolved in the recent past, to include two new touchstones for constitutionality, namely, proportionality and manifest arbitrariness. While both tests arguably involve a higher standard of review for State action than the ‘reasonable classification’ test, they are also relatively inchoate in nature. For instance, in Shayara Bano, Justice Nariman held that an excessive and disproportionate action itself would be manifestly arbitrary. Hence, the Indian judiciary has failed to reach a consensus on what the legal contours of each test should be. This does not preclude an argument against the marital rape exception founded upon these touchstones, however, given the reluctance of the SC to articulate the tests clearly, these arguments are likely to be speculative at best.
I would suggest that the strongest argument against Exception 2 is under Article 15. Article 15(1) prohibits discrimination on the basis of certain protected grounds, including sex. Arguably, the classification here is not on the basis of sex, because it is between married and unmarried women. Thus, Article 15(1) has often been ignored in this context, because an argument based on disparate treatment/direct discrimination is implausible. However, the SC has recently recognised other forms of gender discrimination under Article 15.
The unconstitutionality of measures grounded in sex stereotypes has been explicitly noted by the SC in Joseph Shine v Union of India, which declared Section 497 of the IPC to be ultra vires the Constitution. In his opinion, Chandrachud J. observed that Section 497 entrenched and perpetuated gender stereotypes and existing structures of discrimination, in clear violation of Part III of the Constitution. Similarly, in Babita Puniya, the SC observed that gendered assumptions in the social context of marriage and family are not a valid constitutional basis for classification. Although Babita Puniya was a case of denial of equal opportunity to women in the armed forces, the observations made by Chandrachud J. therein present a recognition of the harms of sex stereotypes, and their incongruence with the constitutional right to equality. I would argue that this ‘anti-stereotyping principle’ invalidates any State action that is premised in, or reinforces, gender stereotypes, beyond cases of access and classification. Marital rape must be seen from the vantage point of oppression within the marital home, alongside the familial, religious and social constraints that are imposed on a woman’s agency when she marries. Exception 2 thus endorses the gender roles within a marriage, particularly the woman’s duty to provide sex, the husband’s right to demand it, and the irrelevance of her consent and desires. From this perspective, Exception 2 constitutes invidious gender discrimination with a significant social harm, which must be acknowledged by the judiciary. Strategically, Article 15 presents a more effective pathway to striking down Exception 2, because there are no “reasonable” exceptions or limitations within the text of the Constitution which dilute the force of Article 15(1).
The Consent Question: What comes next?
Despite the clear and violent impact of Exception 2 on women, why has the SC refused to engage with its constitutional validity? In my opinion, it is because marital rape presents uncomfortable questions on consent for the Indian judiciary. If Exception 2 is struck down as unconstitutional, consent becomes the only boundary between legal and illegal acts of sex, whereas, for centuries, marriage has been the only haven for socially acceptable and legal sex.
Another uncomfortable dilemma which is likely to arise upon the criminalisation of marital rape is that of proof. Once Exception 2 is removed, several evidentiary issues arise, concerning the timing, scope and communication of consent within a marriage. For instance, given the temporal importance of consent, if a married couple engages in consensual intercourse for 100 days, but the wife withdraws consent on the 101st day, it should constitute rape. However, what sort of evidence would the court consider in such cases, especially as prior sexual history is irrelevant under law? Admittedly, the mere fact that evidentiary issues exist does not imply that Exception 2 must be retained. In fact, the Law Commission of the United Kingdom acknowledged the existence of these issues in cases of marital rape, but suggested that the ‘difficulty in matters of proof’ has never constituted a basis for retaining injurious laws. The same reasoning applies in the Indian context, which is something the Delhi High Court must account for.
It may also be argued that the evidentiary difficulties in proving marital rape are no more arduous than those that exist in cases of rape or sexual abuse generally. Identical challenges of proof exist when acts of ‘stranger rape’ do not result in outward signs of violence, or take place in an absence of witnesses i.e. cases of ‘he said, she said’, where the woman’s word is the strongest evidence available. The Indian Evidence Act, 1872 has attempted to alleviate this concern through Section 114A, which places a presumption of non-consent when the woman states in her evidence that she did not consent. Presently, this presumption is not applied to cases outside of aggravated rape under Section 376 (a), (b), (c), (d), (e) and (g) of the IPC. Even if this presumption was extended to marital rape, it is unclear what forms of evidence could displace or rebut the presumption. The treatment of Section 114A itself is yet to be clearly defined by the judiciary. For instance, the Bombay High Court has held that Section 114A does not present a fixed yardstick or rigid rule, and the testimony of the survivor must be viewed against the entire evidence on record. Moreover, in Munna v State of Madhya Pradesh, the SC has held that when there are inherent infirmities in the survivor’s testimony, which impact its veracity, the presumption under Section 114A may not be acted upon and the ‘benefit of the doubt’ may be given to the accused. In light of the subjective consideration of evidence in rape trials, a mere legal presumption of non-consent may be insufficient, particularly in cases of marital rape.
It is undeniable that the marital union reveals a conundrum. Not only is the perpetrator known to the survivor, but the survivor has entered into a legal relationship which impliedly, and unfortunately, places her at risk of abuse. While the global consensus shifts towards contemporaneous and affirmative consent, how would such consent be understood within romantic relationships? Would parties have to verbally consent to each act of intercourse each time and each day, and if so, is that a practical standard to incorporate into the law?
It is also questionable whether affirmative consent can account for the gendered pressures within an institution like marriage. A woman may consent to sex due to her financial, social or emotional dependence on her husband, as opposed to actual desire. Professor Catherine Mackinnon argues that even when there may be no such external influence, such consent is always subject to coercive and gendered pressures. On account of marriage being a predominantly patriarchal institution, a woman’s desires become a function not of her pleasures, but her husband’s desire. From this broader perspective, affirmative consent may be inadequate in capturing the true sexual dynamics within a marriage, but can the law adopt a standard that does effectively account for them?
In my opinion, the answer to these dilemmas lies in a contextual consent framework, as opposed to a bright-line test of consent. The Indian judiciary has taken certain strides in this regard. For instance, the SC has previously differentiated between ‘consent’ and ‘submission’ — the latter has been understood to mean assent granted in the context of fear or coercion. However, Sections 90 and 375 of the IPC limit these coercive circumstances to cases of forced sex due to ‘fear of injury’ or ‘misconception of fact’. This does not account for a myriad of ways in which coercion may take place, in particular, through the emotional and mental abuse of women. This is important in the case of marital rape, wherein consent may not necessarily be vitiated by threatened physical domination and violence, but through the existence of skewed situational factors and dynamics.
A contextual inquiry permits the court to investigate the dynamics and inequalities between the parties involved, which may then either confirm or displace an allegation of coercion. For instance, under the law of contracts, consent may be vitiated by coercion and undue influence, as situational factors which are determined by the courts on a case-to-case basis. Professor Mackinnon similarly suggests a shift from the idea of ‘non-consensual’ to ‘coercive’ – the presence of coercion itself indicates the absence of consent, and such coercion may be physical or circumstantial. Needless to say, this is a far higher ask of the judiciary, which may require proper training and sensitisation to appreciate the complexity of rape as a form of gendered sexual violence. This sensitisation is essential – for instance, even in jurisdictions where marital rape has been criminalised, there is often judicial leniency in sentencing for cases of marital rape, in contrast to ‘stranger rape’, because the former is somehow seen to be less ‘egregious’.
Therefore, criminalising marital rape is only the tip of the iceberg. Yet, for these conversations to begin, the immunity granted to men who rape their wives must be removed first.
 Matthew Hale, The History of the Pleas of the Crown 629 (S. Emlyn ed., 1778). Sir Hale’s opinion on irrevocable consent was invalidated by the United Kingdom House of Lords in R v. R  UKHL 12.
 Jill E. Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Calif. L. Review 5, 1373, 1486-1490 (2000).
 See also Harvinder Kaur v Harmander Singh, AIR 1984 Del 66 (Delhi High Court).
 See generally M. P. Jain, Indian Constitutional Law (Chelameswar J. & Naidu J. ed., 2018).
 Navtej Singh Johar v. Union of India (2018) 10 SCC 1.
 The Law Commission, Report No. 205 ‘Rape Within Marriage’ (1992), 12-15 (United Kingdom).
 Sudhakar v. State of Maharashtra, 2004 SCC Online Bom 237.
 See Janet E. Halley, The Move to Affirmative Consent, 42 Signs: J. Women Culture & Soc’y1, 257 (2015).
 Jacob E. Gersen & Jeannie Suk, (n11), at 167.
 Catherine A. Mackinnon, Rape Redefined, 10 Harv. L. & Pol’y. Rev. 431, 444 – 447 (2016). See also Michael Warner, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life, 100(Harvard Univ. Press, 1999).
 Jacob E. Gersen & Jeannie Suk, (n11), at 156.
 See Explanation 2 to Section 375, Indian Penal Code, 1860 [“unequivocal voluntary agreement when the woman through…any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”].
 Sections 15 and 16, Indian Contract Act, 1872. See also Allcard v Skinner, (1887) 36 Ch D 145.
Catherine A. Mackinnon, (n25), at 470. For the ways in which affirmative consent may be insufficient in resolving issues with marital rape, see also Robin West, Marital Rape, Consent, and Human Rights: Comment on “Criminalizing Sexual Violence Against Women in Intimate Relationships” 109 American Journal of International Law: Unbound, 198-199 (2015).
 Philip N.S. Rumney, When Rape isn’t Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape, 19 Oxford Journal of Legal Studies 2, 243-269 (1999).
Unnati Ashish Ghia is a counsel at the Bombay High Court in the chambers of Dr. AbhinavChandrachud, and a graduate of NLSIU Bangalore.