The Supreme Court of India needs to create another benchmark of transformative constitutionalism to protect the dignity of married women.
In 2017, the release of the critically acclaimed film ‘Lipstick Under My Burkha’ familiarized us with the life of Shirin, a mother of three, and a woman who desired to be financially independent. The other prominent identity of Shirin, however, was that of a woman in the shackles of marriage. In the film, we see Shirin forcefully subjected to unprotected sexual intercourse by her domineering husband on a regular basis. This leaves her with no option but to undertake contraceptive pills frequently despite legitimate concerns about the detrimental impact of the contraceptives on her health. Long after the end credits roll out, the plight of Shirin lingers on as the lived reality of innumerable Indian women.
It is a matter of immense ignominy that marital rape continues to exist as an exception to the offence of rape defined in Section 375 of the Indian Penal Code. Exception 2 in Section 375 originally read as: ‘Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.’ However, following the Supreme Court’s decision in Independent Thought v. Union of India, this exception was read down to be only applicable to married women not below eighteen years of age.
The court’s spirited assertion of the dignity of women in the recent decision of Joseph Shine v. Union of India offers a window of hope to these women for emancipation. In times when the judiciary has urged upon the need to let constitutional morality supersede popular morality, it is necessary that the apex court acknowledges the elephant in the room that a civilized society chooses to conveniently ignore. The abhorrent incidence of marital rape in the private sphere of marriage reduces women to merely sexual objects subservient to the will of their husbands.
The recognition of constitutional rights in the private sphere of marriage
The Delhi High Court in Harvinder Kaur v. Harmander Singh Choudhry had observed that the introduction of the ‘cold principles of constitutional law’ at home was akin to introducing a bull in a china shop. The aversion of the court in this regard was based on the reasoning that the demanding standards of fundamental rights would inevitably weaken the bond of marriage. The judiciary in India has however come a long way since then. Recently, the Gujarat High Court urged the legislature to consider the criminalization of marital rape. It was said that marital rape is not matter of privilege for the husband. Rather it is an injustice that leads to the dehumanization of women.
In Joseph Shine v. Union of India, the Supreme Court emphasized upon the duty of constitutional courts to ensure the obliteration of parochial social mores which are antithetical to the idea of constitutional morality. It was said that the constitution recognizes the autonomy of women to take decisions even in the most intimate of spheres such as marriage. The court went on to hold that: “Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege is to obstruct the unfolding vision of the Constitution.” In the landmark privacy judgement, the Supreme Court also recognized the danger of using privacy as a veneer for the sustenance of patriarchal social structures and the subordination of women. The resistance to recognizing marital rape as a criminal offence in itself stems from the ostensible necessity to preserve the institution of marriage. However, if the private sphere perpetuates systematic oppression and overrides the dignity of women, courts must not shy away from intervention. Upon recognizing such a need, the Supreme Court has played remarkable counter majoritarian roles recently to decriminalize adultery in Joseph Shine and read down Section 377 of the Indian Penal Code in Navtej Singh Johar v. Union of India.
Affront to the dignity of women and manifestly arbitrary
Consent to sexual intercourse is integral to a woman’s modesty irrespective of whether it takes place within marriage or outside of it. The denial of agency to the married woman to take decisions pertaining to her body constitutes a gross violation of her fundamental right to life. The Supreme Court has previously held that rape is a crime against basic human rights and the violation of the victim’s right to life and dignity under Article 21 of the Constitution.
Besides being an affront to the dignity of women, the marital rape exception also suffers from manifest arbitrariness. In the recent triple talaq decision, the Supreme Court had endorsed the manifest arbitrariness test to render the practice violative of Article 14. It was laid down that if the legislature engages in enacting laws “capriciously, irrationally and/or without adequate determining principle”, it would be deemed to be manifestly arbitrary. On the basis of the same reasoning, in Joseph Shine v. Union of India, the Supreme Court took strong exception to the offence of adultery enshrined in Section 497 of the Indian Penal Code for arbitrarily treating a woman as the property of the man. The court expressed its concern for the complete loss of the “voice, autonomy and agency” of the woman. The creation of a separate exception in Section 375 of the Indian Penal Code suffers from arbitrariness as it creates a capricious compartmentalization of the offence of rape by placing the rape committed by the husband on a separate pedestal, away from the glare of the criminal law statute. It creates the problematic notion that women have waived the right to consensual sexual intercourse upon agreeing to enter a marital bond. Therefore, the protective treatment of the heinous crime under the garb of preserving the sanctity of marriage does not warrant any reasonable justification. The exception is thus contrary to the Article 14 of the Constitution for suffering from manifest arbitrariness. The presence of Section 498A for penalizing the cruelty of the husband or his relatives with a meagre maximum imprisonment of three years also fails to offer any solace to married women.
The legitimate aims of the state may extend to imposing penal sanctions to certain acts within the framework of marriage as Justice D.Y. Chandrachud observed in the adultery judgement. The purpose of criminalizing certain wrongful acts such as domestic violence is to protect the dignity of women. Therefore, the criminalization of marital rape would be to ensure the treatment of women as equal citizens in both public and private spheres of life. The Late Justice Leila Seth, in her seminal work ‘Talking of Justice’, had expressed dissatisfaction as to how the government of India did not accede to the Justice Verma Committee Report’s unequivocal recommendation to criminalize marital rape following concerns of misuse and the supposed difficulty of finding evidence of rape in the private space of the bedroom. Justice Seth opined that such concerns were unfounded as sexual abuse had already been defined as an act of domestic violence in the Protection of Women from Domestic Violence Act, 2005.
Much like in the decision rendered in Suresh Kumar Koushal v. Naz Foundation, to wait for legislative intervention to criminalize marital rape would be an act of judicial pusillanimity. In Navtej Singh Johar v. Union of India, Justice Indu Malhotra highlighted the need for India’s constitutional democracy to owe an apology to an entire community of sexual minorities for the decades of discrimination and injustice meted out to them. We also owe an apology to the countless women who have been victims of marital rape and yet suffered in silence. The time has come for the Supreme Court to step in once more and set another benchmark of transformative constitutionalism.
Rongeet Poddar is a IV year, B.A., LL.B (Hons.) student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata. You can reach the author here.
 L. Seth, Talking of Justice: People’s Rights in Modern India, 12 (2014)
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