Art. 13(1)[1]

Clearly mentions that any law in force in the territory of India before the commencement of this Constitution, in so far as they are inconsistent with the provision of this Part, shall be void to the extent of such inconsistency. In light of the recent 2023 judgment by the Allahabad High Court that observed that marital rape is not considered an offense if the wife is above 18 years of age. However, It is Exception-2 of Sec 375 of the IPC (1860) is unconstitutional as it violates Art. 14, 15, 19 (1)(a), and 21 of the CoA.

The inter-relationship between all the abovementioned fundamental rights must be largely emphasized. It has been a settled position of law since the landmark decision of R.C. Cooper[2] and Maneka Gandhi[3] that fundamental rights are not to be construed as isolated silos or watertight compartments as observed in the A.K. Gopalan's[4] case. Hence, Part III of the Constitution does not contemplate that each Art. of the Constitution is a code by itself independent of others, and there is a necessary overlapping of the Articles weaving together a pattern of guarantees on the texture of basic human rights.

Art. 14

The impugned provision is violative of Art. 14 of the Constitution as [A] It creates an unreasonable classification, and [B] It defeats the purpose of the law. Equality before the law necessarily means the right to equal treatment in similar circumstances,[5] for both privileges conferred and liabilities imposed by laws.[6] The concept of 'equal protection of laws' is a positive concept[7] meaning that application of the same law must be without discrimination to all persons similarly situated.[8]

1. It creates an unreasonable classification.
   The doctrine that 'likes should be treated alike'[9] essentially means that the varying needs of different classes or sections of people inherently require differential treatment and that un-equals cannot be treated equally.[10] For this reason, although Art. 14[11] prohibits class legislation, it does not forbid reasonable classification[12] of persons. A law based on a permissible classification fulfills the guarantee of equal protection of the laws and is valid[13] in so far as it has a reasonable nexus to the object sought to be achieved.[14]
   
   Exception-2 to Sec. 375 of the IPC creates a separate class of married women above the age of 15 years by exempting a husband from being tried for rape or unnatural sex with his wife. However, the SC in the case of Independent Thought Co. v. Union of India[15] (later reiterated by Delhi High Court in the case of RIT Foundation v. Union of India[16]) ruled that sexual intercourse between a man and his wife aged between fifteen to eighteen years is rape. The present position of the exception applies to married women above the age of eighteen. The reasoning behind the classification lies in the patriarchal presumption that when a woman marries, she implicitly provides irrevocable consent to sexual intercourse, echoing the stereotypical notion of non-agency of women.
   
   Furthermore, the requirement of marital rape to be committed on a wife having to be above the age of eighteen raises a serious predicament as to why a woman loses the right to her bodily integrity upon turning fifteen. Thereby, the threshold of age has been brought to the age of majority, the law still does not apply even-handedly for women who are similarly circumstanced.
    
2. It defeats the purpose of the law.
   Sec. 375[17] was enacted with the objective of protecting women against sexual violence and safeguarding their individual rights and dignity. As J. Krishna Iyer said, "A murderer kills the body whereas a rapist kills the soul."[18] The SC held in Budhan Choudhary v. State of Bihar[19] that "any classification made under Art. 14 of the Indian Constitution is susceptible to the test of reasonableness that can only be carried if the categorization has a rational connection to the goal of the act."
   
   By not recognizing marital rape as a criminal offense, there is an explicit contradiction to the aim of the provision and the normalization of denying married women agency over their bodies. Offenders in such crimes continue to escape from facing punishment despite the existence of a provision for convicting such offenses. It is also pertinent to note that in some scenarios, women are legally and financially bound to their spouses making it harder for them to seek help or assistance. By excluding such a vulnerable class of individuals from the purview of sexual crimes, the law fails to provide 'equal protection' to them. While an unmarried woman who is the victim of the offense of rape stands protected by taking recourse under Sec. 375[20], the same regime does not kick in if the complainant is a married woman.
   
   Moreover, constitutionally every female is equal to a male, and no statute can be interpreted or understood to derogate from this position. Going by the logic that "if there is some theory that propounds such an unconstitutional myth, then that theory deserves to be completely demolished"[21], the marital rape exception does not hold good as under Art. 14.[22]

Art. 15

Exception II of the Sec. in question is in violation of Art. 15(1) of the Constitution. The argument advanced is that it discriminates on the grounds of age and marital status.

As previously argued, the commission of marital rape not being recognized as an offense if the victim is married and above the age of majority is arbitrary and contributes to the subordination of a disadvantage group of adult married women. The intersectional nature of sex discrimination does not operate in isolation of other identities like age and marital status.

J. Chandrachud in Navtej Singh Johar v. Union of India[23] held that "A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Art. 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Art. 15 on the grounds only of sex."

Exception 2[24] is only in furtherance of the Victorian 'doctrine of coverture', that subordinates a woman's legal status upon being wed. Her legal existence as an individual no longer exists and as William Blackstone famously declared "by marriage, husband and wife are one person at law". Except that the husband now enjoyed exclusive power over his wife giving him immunity even from the heinous offence of rape. A strong stereotype underlies this diction of control over women's sexuality stemming from patriarchal assumptions that the husband has a right to sex and a right to use his wife's body for this purpose. It reduces women to private property of a sexual nature, owned by distinct male owners.

Ultimately, when individual dignity and freedom are being denied not simply against the State but also in social institutions and structures, the State must apply the Constitution to democratize private relationships and break down inequalities within those relationships. The prima facie existence of such discrimination removes any question of the public-private sphere divide.[25]

Art. 19 (1)(a)

Art. 19 (1) (a)[26] guarantees every citizen of India the freedom of speech and expression. A woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship. As opined by J. Shakder, the "right under Art. 19 (1)(a) includes a woman's right to assert her sexual agency and autonomy."[27]

A modern-day marriage is a relationship of equals. A woman has the right to withdraw her consent for sexual relations with her husband at any point. Not allowing her to do so would be violative of her freedom of expression. Marital rape disregards this circumstance wherein a wife may say 'no' to sexual intercourse. The institution of marriage cannot be allowed to sanction force and violence. The Karnataka HC, along similar lines, had held that "a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape" and "If rape is punishable to a man, it should be punishable to a man albeit, the man being a husband."[28]

2.4 Art. 21

The marital rape exemption permits a husband to violate his wife's bodily integrity by allowing him to impregnate her against her will in denial of her reproductive freedom. The exemption extinguishes a married woman's autonomy in one of the most personal and intimate of all human interactions. The State would thus be violating the privacy rights of every married woman by allowing their husbands to rape them without fear of prosecution. "A sexual assault is an invasion of bodily integrity and a violation of freedom and self-determination wherever it happens to take place, in or out of the marriage bed."[29]

The SC has previously recognized the sexual autonomy and reproductive choices of women as a component of their right to personal liberty under Art. 21.[30] Marital rape fouls this reasoning as well. Every woman is entitled to her sexual privacy and it is not open for any and every person to violate her privacy as and whenever he wishes.[31]

Arguendo, even if the question of marital rape is said to be excluded from the eyes of law through the idea of marital privacy, "marital privacy should protect consensual acts, not violent sexual assault."[32] The State has no interest in preserving a deteriorated marriage, and marital rape is one of the strongest signs of such deterioration. Rape itself disintegrates the marriage; a wife's criminal complaint testifies to the absence of marital harmony and intimacy.[33] This position assumes that the harmful effects of marital rape are somehow mitigated by prior sexual acts, that intimacy serves to soften the blow.

J. Pasayat held in the case of Tulshidas Kanolkar v. State of Goa[34], "While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female". Marital rape is an abomination not because it is an assault on innocence but because it is an assault on freedom. It is an injury to autonomy and dignity wherein the victim is degraded and put through a series of devastating occurrences, often spanning years.

Further, in the landmark case of The Chairman, Railway Board v. Chandrima Das[35], the SC held that rape is not a mere matter of violation of an ordinary right of a person but the violation of fundamental rights which are involved. It is a crime not only against the person of a woman but against the entire society. It is a crime against basic human rights and is violative of the victim's most cherished right, namely, the right to life which includes the right to live with human dignity contained under Art. 21.

Marital rape cannot be construed to be any smaller than rape itself. A married woman's right to life includes all aspects of life that make it meaningful and worthy of living. It is humbly contended that the SC, as the custodian of the Indian Constitution, has the duty to preserve and ensure these basic rights.

End-Notes:

1. INDIA CONST. Art 13, Cl. 1.
2. R.C. Cooper v. Union of India, (1970) 1S.C.C. 248
3. Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248
4. A.K. Gopalan v. State of Madras, (1950) 1 S.C.R. 88.
5. V. Subramaniam v. Rajesh Raghuvendra Rao, (2009) 5 S.C.C. 608.
6. John Vallamattom v. Union of India, (2003) 6 S.C.C. 611.
7. Usha Mehta v. Govt. of Andhra Pradesh, (2012) 12 S.C.C. 419.
8. Jagannath Prasad Sharma v. State of Uttar Pradesh, (1962) 1 S.C.R. 151.
9. Gauri Shanker v. Union of India, (1994) 6 S.C.C. 349.
10. M. Jagdish Vyas v. Union of India, (2010) 4 S.C.C. 150.
11. INDIA CONST. Art. 14.
12. State of Mysore v. P Narasinga Rao, (1968) 1 S.C.R. 407.
13. Municipal Committee, Patiala v. Model Town Residents Assn. (2007) 8 S.C.C. 669.
14. Javed v. State of Haryana, (2003) 8 S.C.C. 369.
15. Independent Thought Co. v. Union of India (2017) 10 S.C.C 800.
16. RIT Foundation v. Union of India (2022) S.C.C Online Del 1404.
17. Indian Penal Code, 1860.
18. Rafiq v. State of U.P (1981) S.C.R (1) 402.
19. Budhan Choudhary v. State of Bihar (1955) AIR S.C 191.
20. Indian Penal Code, 1860.
21. Independent Thought Co. v. Union of India (2017) 10 S.C.C 800
22. INDIA CONST. Art. 14.
23. Navtej Singh Johar v. Union of India AIR (2018) S.C. 4321.
24. Sec. 375, Indian Penal Code, 1860.
25. Navtej Singh Johar v. Union of India AIR (2018) S.C. 4321.
26. INDIA CONST Art. 19, Cl. (1)(a).
27. RIT Foundation v. Union of India (2022) S.C.C Online Del 1404.
28. Hrishikesh Sahoo v. State of Karnataka (2022) LiveLaw (Kar) 89.
29. S. BROWN MILLER, AGAINST OUR WILL, 381 (Simon & Schuster, 1975).
30. Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1; Joseph Shine v. Union of India (2019) 3 SCC 39.
31. State of Maharashtra v. Madhkar Narayan AIR 1991 SC 207
32. People v. Liberta, 64 N.Y.2d 165 (1984).
33. Lyon, Matthew R. "No Means No?: Withdrawal of Consent during Intercourse and the Continuing Evolution of the Definition of Rape." The Journal of Criminal Law and Criminology (1973-), vol. 95, no. 1, 2004, pp. 277�314. JSTOR, https://doi.org/10.2307/3491384. Accessed 25 Nov. 2023.
34. Tulshidas Kanolkar v. State of Goa (2003) Appeal (Cri) 298
35. The Chairman, Railway Board v. Chandrima Das MANU/SC/0046/2000