Marital rape has not yet shaken the conscience of the legislature of the country. The judiciary too has averted the question of marital rape. The recent case law of Independent Thought v. Union of India[1] whereby the age for a married relationship to fall within the ambit of rape for a married couple was construed to be not 16 years (as earlier) but 18 years – in parity with the Indian Majority Act and all other legislation that determine majority at the age of 18 years.

But, unfortunately, the judiciary once again reiterated the present legal framework. In other words, the law of the land stands to advocate the proposition that there can be no instance or fact of rape or forceful sexual intercourse in a married relationship. It is presumed very organically that marriage allows or confers the right to have sex whenever, wherever, and howsoever! In the case-law cited above, this age that was as low as 16 years meaning, firstly, that marriage was being conceived to be plausible even before attaining majority that contravenes the other laws in place and secondly, in such cases too, there won’t be any rape envisaged as such which otherwise would be so if the 16 years old girl is not married. Of course, the Supreme Court struck down the former but actively (by mentioning it in the judgment) desisted from commenting on the issue of marital rape[2].

Thus, even though, presently, a girl below 18 years, if gets married, rape could be construed for her. But, this does not protect women from being raped within their marital bonds because this case only in effect invalidates any marital bond if the girl is below 18 years and accordingly she would be treated similar to any other unmarried girl or woman.

Basing upon this idea, there are two pertinent questions that are the key to understanding the perspective of acknowledging marital rape.

1. First: what exactly is the definition of marriage? Can marital rape- a forceful and coercive act be justified within this?
2. Second: does marriage afford a proprietary interest over the wife?

To answer the first question, definitions can be taken from three landmark decisions of the Supreme Court that portray the definition of marriage from a religious perspective as embodied in the personal law conceptualization. These case laws are from the High Courts of Chhattisgarh, Calcutta, Gujarat, and Kerala.

From the Hindu personal law lens, In Claudia Jude v. Lancelot Jude[3] it was held that the only kind of marriage which the English law recognizes is one which is essentially the voluntary union, for life, of one man with one woman.

In Rakesh Gautam v. State of Chhattisgarh[4] the Gouna ceremony was under consideration to construe whether the marriage was completed. It was observed in this regard that the Gouna ceremony is a ceremony for uniting the bride and the bridegroom as a part of marriage. These portray the uniting feature of marriage that gives the essence of it being a spiritual union than a mechanical method of transfer of property.

From the Muslim law perspective, in Sajan Husen Kumbhar v. State of Gujarat[5], section 250 of Mulla's Principles of Mahomedan Law, 19th Edition was quoted and definition was unearthed as  Marriage (nikah) is defined to be a contract which has for its object the procreation and legalizing of children. Thus, even under the Muslim law which considers marriage as a contract, the same does not give a right to forceful sexual intercourse.

In fact, even considering the principles of contract (strictly which is also followed for the Muslim Nikanama), forceful sexual intercourse will be an unlawful object as such and will make the contract bad in law and void ab initio. Thus, legally there cannot be any contract for marriage under Muslim law that will allow forceful sexual intercourse making marital rape an offense per se.

In T.C. Chacko v. Annamma[6],  The sacramental dimension of Christian marriage was identified and to quote, …reflects the eternal relationship of Christ to His Church. Marriage is defined in the Canon Law thus:
the marriage covenant established by the Creator and ordered by his laws by which a man and a woman by an irrevocable personal consent establish between themselves a partnership of their whole life is by its natural character ordered towards the good of the spouses.

The sacramental grace was identified and it was also observed that definition:
points to an insight of the mystical, spiritual and theological outlook and perception of marriage characteristic to the oriental mentality.

So, here too, the voluntary partnership elaborated on the spiritual meeting of the souls has been identified and that can certainly not permit the commission of act akin to marital rape that will infringe upon these spiritual notions of marriage.

To answer the second question, the case of Joseph Shine vs. Union of India[7] can be analyzed. Here, Adultery was read down, the reasoning augmented to strike down the age-old section 497 IPC was that marriage cannot be considered to be a proprietary interest of the husband which has been the reason or justification behind the criminalisation of adultery that cannot sustain constitutionality and is arbitrary writ large.

The judges were courageous to opine that adultery attempted to impinge upon this proprietary interest of the husband and so to say hurt the ego that had led to the continuation of this archaic law. Drawing from here, it can be understood that marriage does not give any proprietary interest over the body of the woman, and accordingly, the right to have sexual intercourse and demand sexual favors is grossly unjust, uncouth, and inhumane.

While quoting Charles A. Tinker v. Frederick L. Colwell[8], the judges took note of how adultery was considered as trespass for which damages had to be paid to recuperate for his wounded feelings and honour, the defilement of the marriage bed, and for the doubt thrown upon the legitimacy of children.

Finally, on the ground of international obligations flowing down from Arts. 253, 73 (read with Entry 14, List I) and 51(c) of the Constitution of India, there is an obligation on India to enunciate laws pertaining to the ratified treaties. CEDAW is one such treaty to which India is a ratified member and has no reservation except one on the complaint mechanism envisaged under Art. 29[9]. Art. 2 of CEDAW and also as noted in the famous Chairman Railway Board vs. Chandrima Das, India has an obligation to formulate laws on marital rape or while making laws shall not breach the essence of the provisions (here that being of marital rape). Thus, in consonance to CEDAW, it is long due for India to enact legislation criminalizing marital rape.

To quote from the Convention, in Article 2, it was specified that:
… violence against women shall be understood to encompass, but not be limited to:
(a) physical, sexual and psychological violence occurring in the family including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation…

This idea can be seen to be reflected in a series of international case laws that also advocate how marital rape is internationally recognized and is a breach of the human rights standard. For example, in Prosecutor v. Francisco Soaeres[10],  it was observed that:
If the present Court applies indiscriminately the entire prevision of article 285 PCI it will create marital rape as an exception inside the crime of rape in East Timor: this position, according to my point of view, conflicts with internationally recognized Human Rights standards. Marital rape, in fact, violates the Convention on the Elimination of All Forms of Discrimination against Woman

Having a comprehensive look at these two vital questions surely reveals the underlying insignificance of continuing with law and practice that avoids the true justice being done to the women. It is with extreme hope that the author writes this account by reposing complete confidence and faith in the present apex court that has lately ensured a much humane outlook, especially to issues pertaining to women.

End-Notes:

1. (2017) 10 SCC 80.
2. Para 108, We make it clear that we have not at all dealt with the larger issue of marital rape of adult women since that issue was not raised before us by the petitioner or the intervener..
3. AIR 1949 Cal 563.
4. (2011) 106 AIC 484.
5. (1999) 2 GLH 18
6. AIR 1994 Ker 107
7. (2019) 3 SCC 39
8. 193 US 473 (1904).
9. http://ncw.nic.in/sites/default/files/CEDAW%20The%20Reservations%20And%20Optional%20Protocol.pdf
10. 2002 SCC OnLine SPSC 4