Earlier today, The New York Times reported that a court in Mexico has held that marital rape is a crime within Mexico: The Supreme Court of Mexico ruled Wednesday that rape within marriage is a crime, bringing Mexico’s laws into line with much of the world and removing one of the many obstacles women here face in reporting rape. The ruling ended a legal battle waged since 1994, when a majority of the justices agreed that because the purpose of marriage was procreation, forced sexual relations by a spouse was not rape but “an undue exercise of conjugal rights.” The unanimous ruling on Wednesday said the earlier decision had denied women the right to exercise their sexual freedom and was based on an interpretation of rights relating to property, not human beings. The court stated clearly that forced sexual relations within marriage – whether the force is physical or psychological – was a crime. “What’s behind this is a modern conception of the relationship between a man and a woman in marriage,” said José de Jesús Gudiño Pelayo, a justice of the Supreme Court. “It’s a relationship of equality in which a woman does not lose her sexual freedom when she marries.” That the decision came with so little debate suggested that attitudes in this macho country are changing, albeit slowly. But many women’s advocates agreed that while the ruling was a landmark step, polls on social attitudes have shown that deep-rooted opinions that women should be subservient still hold sway over much of society. They warned that entrenched attitudes still made it very difficult for women to report rape. As the article notes, there are now very few countries in the world which do not criminalise marital rape. Sadly, India is one of these few countries (the article identifies Malaysia as another such nation). Let us examine the position in India. Section 376 of the Indian Penal Code, which defines the offence of rape provides an exception for marital rape, as follows: Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. Activists for women’s rights have long campaigned to have this exception repealed, and the issue was recently referred to the Law Commission of India. (For details about the campaigns to repeal the exception, see this recent article by two law students which provides a useful overview of the issue, and also details some countries and international conventions that have outlawed the practice). In its 172nd Report (dated March 2000), the Law Commission of India tackled the issue of marital rape while addressing other proposals for reforming the provisions relating to rape. The treatment accorded appears to be extremely superficial as is evident from the Law Commission’s summary dismissal of the proposed reform:

“Representatives of Sakshi [the women’s organisation which litigated the issue of reforming Indian penal laws relating to offences against women] wanted us to recommend the deletion of the exception, with which we are unable to agree. Their reasoning runs thus: where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years. We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship.” (Emphasis added) It would be interesting to consider how, in a hypothetical challenge to the constitutionality of the marital rape exception to Section 376, the Supreme Court would react to the citation of the Mexican court’s judgement outlawing marital rape. On the face of it, the Indian Supreme Court, which has a long history of engaging with foreign and international law, should have no trouble in engaging with the Mexican judgment, and following through on its rationale. As a recent study demonstrates, the Supreme Court of India has referred to foreign law in a large number of cases. Therefore, the Court should have no difficulty in accepting the reasoning of the Mexican Supreme Court as the judgment was rendered in the context of a society which has many factors in common with India. In addition, many other nations have taken the decision to criminalise marital rape, and this position is also mandated by applicable international conventions and treaties. However, the practice of relying upon foreign law is not as uncomplicated as an initial consideration of the issue would suggest. Rajeev Dhavan has noted that the Supreme Court’s reliance on ‘western jurisprudence’ during the first 25 years of its existence led to several problems (Rajeev Dhavan, The Supreme Court of India: NM Tripathi, 1977 at pages 454-55 and 461). According to Dhavan, the early Indian Supreme Court judges “approached very many issues before them from the alien standards of western jurisprudence”. Dhavan avers that this was especially so in cases relating to property and land reforms, which ultimately led to the failure of successive laws and governmental actions to achieve meaningful land reforms. Dhavan further asserts that it was because of such a slavish attitude towards ‘western jurisprudence’ that Indian judges adopted a passive attitude towards preventive detention laws, as well as personal law matters. There are some problems with this hypothesis. Surely the fact that the results dictated by ‘western jurisprudence’ were aligned with the interests of the classes from which Supreme Court judges were drawn, may have had something to do with the phenomenon? Seen from this perspective, Indian judges were not, as Dhavan suggests, naïve, overworked people acting under the influence of “imitative cosmopolitan habits”, but were actually strategic and instrumental actors working towards ends that benefited them and their class. The current argument against the application of foreign and international law in India would be along the lines argued by the Law Commission of India: that criminalizing marital rape would amount to “excessive interference with the marital relationship.” This argument smacks of cultural relativism, and amounts to saying that Indian men have a ‘right’ to expect sexual intercourse on demand, regardless of the consent of their spouses. As various studies highlight, the issue is not simply of whether their spouses consent: there are documented cases where men have inflicted grave forms of sexual violence upon their wives and have availed of this provision to get away. Defenders of the exception would have to make a convincing case in light of documented studies which indicate that the extent of marital violence and rape in India are at extremely high levels. Faced with such a situation, the continuing condoning of the practice by the law would be difficult to justify.
I am not advancing a simplistic, universalist position. I believe there are strong reasons, grounded in our historical, constitutional and social context, which call for the criminalisation of marital rape (some of these reasons have been canvassed by Sakshi before the Law Commission). I believe that the growing international consensus in this respect is an additional factor which must be taken into account. Incidentally, this is the same reasoning that was adopted by a majority of the U.S. Supreme Court in striking down the juvenile death penalty in the U.S. (See Roper v. Simmons, decided in March 2005). Speaking for the majority, Justice Kennedy concluded by reasoning through domestic law that the juvenile death penalty was “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution. Thereafter, he took note of the “stark reality” that the U.S. was the only country in the world that continued to give official sanction to the juvenile death penalty. (The Nov 2005 issue of the Harvard Law Review has an interesting debate over the use of foreign and international law in this case – see the ‘Comment’ section, as well as pp 84-90 of Richard Posner’s ‘Foreword’).
Rather than a court judgment on the issue, the best solution remains that the Indian Parliament recognise the need for reform, and enact an amendment to the Indian Penal Code to make marital rape a criminal offence.
(Update, Nov 20, 2005: The latest issue of Frontline carries a column describing details of a new Bill which seeks to make comprehensive changes to the existing laws relating to sexual assault on women and children. It proposes amendments to the Indian Penal Code, theIndian Evidence Act and the Code of Criminal Procedure. There is also a proposal in respect of the marital rape provision. The Bill has apparently been endorsed by the National Commission for Women and has also gained the informal approval of the Union Home Minister. It should be interesting to see how this bill fares both in Parliament and in discussions about its proposals in public fora.)