ABSTRACT

This paper is an exploration of Exception 2 to Section 375 of the Indian Penal Code because it is the clause that still does not hold a husband criminally liable for committing rape on his spouse. Despite the fact that more than 150 states have criminalised marital rape across the world, India still enjoys this blanket immunity. The discussion analyses how the exception is in breach of Articles 14, 15, and 21 of the Constitution and the present adoption of the right of privacy and bodily autonomy by the Supreme Court in the K.S. Puttaswamy v. Union of India.

The document also explores the decision of the Delhi High Court split in 2022 that reveals opposing judicial views. The fact that India took an opposite stand is evident in a comparative analysis of reforms in the United Kingdom, the United States, Nepal, and South Africa. Such feminist objections to the exception are discussed, as are refutations of the allegations of impossibility of refusal to have sex within a mutually-consenting marriage, and the common rape hoax. The legislative paralysis, even after repeated initiatives by organizations like the Justice Verma Committee, is also an observation that has been taken in the analysis. Finally, however, it is decided that Exception 2 is an outdated provision that is not reconcilable with constitutional promises of equality, non-discrimination, and of individual liberty, and that the expedient of immediate reform is necessary and urgent.

KEYWORDS

Marital Rape, Constitutional Law, Gender Equality, Criminal Jurisprudence, Autonomy, Bodily Integrity

I. INTRODUCTION

The issue of whether a husband can be prosecuted when he rapes his wife, which has been re-labelled marital rape, has created both a legal and a moral controversy over the course of decades. The existing Indian legal tradition, which is provided in the Exception 2 to Section 375 of Indian Penal Code (IPC) of 1860 exempts husbands of prosecution when the couple is living together, and the wife is both eighteen years of age or more, and that there is no formal judicial separation of the spouses. The question mark behind this exception has been growing due to the increase in constitutional questions, feminist protests, and criticism by the common people.

The latest court proceedings, in particular, the verdict in Justice K.S. Puttaswamy v. Union of India and Joseph[1]. The importance of individual autonomy, equal access to gender rights, and the right to bodily security has been at the forefront of the Union of India. Recently, the Delhi High Court postponed the hearing of several petitions to end the marital-rape clause, where the division among the panel of judges was quite big. The issue is now being considered by the Supreme Court of

India, which reserves the right to change the legal and social standards in the country.

The presumption of marital consent that is present in the legal doctrine undermines the conceptual basis of sexual freedom defined by a free agreement between sexual partners. According to the academic community, this doctrine gives rise to gender discrimination and violation of Articles 14, 15, and 21 of the Constitution[2]. And restates the views of the wife being the property of the husband.

II. LEGAL AND HISTORICAL BACKGROUND OF MARITAL RAPE IN INDIA

The marital-rape exception emerged in India in the same colonial period, where it was reflected that the same patriarchal reasoning classified wives as belongings of their husbands. Exception 2 of section 375 of the IPC gives that: Sexual intercourse or sexual acts of men with their lawful wives when the wife is not under the age of fifteen years is not sticken as rape. Even though the amendment in 2013 increased the minimum age of consent in marriage to eighteen years old, the exception continues to pardon husbands who rape their wives.

The authoritative precedent of this rule comes down to the seventeenthcentury English jurist Sir Matthew Hale, who concluded that a husband could not rape his legitimate wife since the process of marriage implied that she would be perpetually consenting to the act. Even the concept of irrevocable consent has been mostly rejected by a contemporary system of progressive jurisprudence.

The introduction of the Indian Penal Code by the British in 1860 applied the same reasoning to India; the body of a wife was considered to belong to her husband. This is one of the clauses that the Indian legislators decided to keep even after independence, despite the later criminal laws and conventions, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[3] That explicitly recognises marital rape as a human rights violation, which India has also ratified.

Later court developments went step by step. The judgment of the Supreme Court in the State of Maharashtra v. An example is Madhukar Narayan Mardikar.[4], who acknowledged that the fact that a woman is promiscuous does not undermine her privacy and her right not to be raped. However, the marital-rape exception continues to enjoy concurring use.

The Justice Verma Committee Report of 2013[5] After the Nirbhaya case, it recommended the removal of the exception alleging that a marital relationship must not provide impunity to sexual violence, as the character of the relationship cannot affect the real issue as to consent. Upon realizing that the move was unpopular with the masses, however, Parliament opted to revise the Criminal Law Amendment Act of 2013 and make the exception smaller, but remain.

III. CONSTITUTIONAL ANALYSIS: EQUALITY, LIBERTY, AND DIGNITY

The Indian Penal Code, Section 375 makes a comprehensive legal structure under which marriage is practiced, but there is a statutory exception in forming the meaning of rape under Sub-Section 2 which discriminates against married women and hence violates the basic rights of equality, non-discrimination, and personal liberty as provided in Articles 14, 15 and 21 respectively.

First, the exemption is systematic as it is in breach of Article 14 in the sense that it bestows differential treatment to women just on the grounds of being unmarried or married. Such assumption of married women not deserving the protection of unmarried women is unacceptable and cannot be in line with the two tests stipulated by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar[6]: the difference should be with regards to the aim of the criminal justice system and it should have a rational nexus with that aim. The difference in this case is not associated with the purpose of criminal justice and is not logically linked with it.

Second, the provision is against Article 15, which prohibits any differential treatment based on sex. Traditionally, marriage was perceived as the waiver or the submission of the sexual free will of the woman; however, modern life shows that women can enjoy the same legal and economic equality in the vast majority of social life situations. With this, the comparison between marital status and sexual consent is not valid in the present society. Anuj Garg versus. Hotel Association of India shot down such an argument.7, commenting that laws got out of dusty, father-knows-best attitudes are incapable of surviving constitutional review as they bar the integrity of a woman.

In conclusion, the marital-rape exception is unjust to equality before the law, sex discrimination, and a violation of the relevant fundamental liberties. The way that it is propagated undermines constitutional oaths of dignity, non-discrimination, and autonomy. The gradual eradication of the exception continues to be a burning issue of both the policy and constitutional loyalty.

IV. JUDICIAL DEVELOPMENTS AND THE DELHI HIGH COURT SPLIT VERDICT (2022)

The constitutional validity aspect of the marital-rape exception arrived at a crucial point in 2022,[7] when several such Public Interest Litigations (PILs) challenged the Delhi High Court to review the constitutionality of Exception 2 to Section 375 of the Indian Penal Code. The petitioners, such as the RIT Foundation and the All India Democratic Women, were claiming that it is unconstitutional as the marital-rape exception in the criminal code amounts to the violation of Articles 14, 15, and 21 of the Constitution.

The bench comprising Justices C. Hari Shankar and Rajiv Shakdher, who delivered a landmark but divided verdict on the case, presented divergent opinions. Justice Shakdher ruled the exception as being unconstitutional and argued that marriage cannot be equated to permanent consent and that the law should cease treating married women as second-rate citizens. He demanded that the right of a woman to say no to a sexual act, even during marriage, should be accepted.

Justice Hari Shankar, in comparison, regarded this exception to be constitutional, noting that parliament has been careful in retaining an exemption in the statute, and courts must not disturb the matter of public policy unless intent is clear. He also warned about the possibility of perjury and the practical impossibility of demonstrating the non-existence of consent in marriage.

The split decision had left the lower court to stand at an impasse, that is, without any formal proclamation that declared the law to be unconstitutional. That case was further taken to the Supreme Court, and the debate is still going on. However, even though the split judgment is incomplete, it has already brought the question to the surface of common legal discourse, forcing both judges and legislators to reckon with a problem that they had neglected over the course of several years.

The cases that the Delhi High Courts consider are the most important since it does not merely consider the law but also acts as a case between competing valuesautonomy, equality, and dignity, and the warm weight of tradition, the respect of the legislature, and the social order as it is. These two judges' outcomes reflect the general apprehension of society to tamper with such established, culturally entrenched social institutions as marriage by introducing a male-centric model.

V. COMPARATIVE JURISPRUDENCE: INTERNATIONAL PARADIGMS

Over 150 countries around the world view marital rape as a crime, and many of their systems are developed on the same common-law basis as those of India. India remains in a dwindling list of countries, which includes Pakistan and Afghanistan, in calling for the practice of legal impunity to spouses as it sought to do to husbands.

India's main colonial legal advisor, the United Kingdom, abolished the marital-rape shield in 1991, when the introduction of the statute was overturned by the House of Lords, in R v. R.[8], in which it was held that wedlock could not mean a permanent consent under the modern law.

Each of the states in the United States has implemented laws criminalising marital rape, but the stringency of rules regarding the necessity of evidence, wording of the statutes, among other things, vary significantly across jurisdictions. In South Africa, the Constitutional Court in S v. Mvamvu[9]. The decision of Mvamvu explained that spouses' consent cannot absolve rape because such a defense compromises their duty to dignity as well as equality in the country.

In 2006, Nepal's Supreme Court struck down the country's marital-rape exception, reasoning that rules of international human rights and the primary right to body integrity applied to the decision. Bangladesh, which had maintained the same exemption, is currently rethinking its rape legislation due to continuous nonstop pressure from the civil society and lobbies of human-rights.

International treaties and decisions made in the past years reveal that there has been an increasing consensus that all sexual activities must be consensual, regardless of whether they take place within marriage or not. Retaining the exception to marital rape puts India in the very position of being beyond its constitutional norms, as well as that which is emerging as the international legal principle.

VI. THE FEMINIST AND SOCIO-LEGAL PERSPECTIVES

As feminist lawyers have noted, marriage as structured by law on the one hand, has perpetuated the power of men in the law, always to the detriment of women who have been relegated to the back seat in the marriage committee. In permitting

rape in a marriage, the exception to the marital rape, condones it through the power asymmetry and, in effect, silences the thousands of women who are victims of sexual violence in their homes.

Criticized by some of the scholars, like Catharine MacKinnon, rape laws portray a female tendency to call back to the male discourse of consent and neglect the real social space women live in. The absence of legal protection shoves the victims into the fringes even more in India, where shame and family pressure usually trumps any potential rectification action by female victims of an abusive husband.

Socio-legal analyses show that the fear of false rape reports, such as in the marriage setting, is a huge exaggeration. The empirical evidence in different jurisdictions has revealed that reported incidences are merely a small fraction of the total number, whereas the general tendency is underreporting, particularly in spouses, because of stigmatization and financial dependency, which mutely robs the victims.

A long-standing relationship between hierarchical values and a right-ofcenters judicial tradition has kept the exception to marital sexual consent intact. The Indian society often considers marriage sacred, and hence, the entry of courts into such personal affairs is viewed as a threat to the institution of family. Nevertheless, the right of a woman to bodily integrity and her married status should not be interrelated.

VII. INERTIA IN LEGISLATION AND LAW COMMISSION REPORTS

Constant lobbying by the people has not been influential enough to convince the parliament to make marital rape criminal. Even though the Justice Verma

Committee recommended the straight-out abolition of the exception, the 2013 Criminal Law Amendment Act postponed this development based on complex social factors and the fear of abuse.

Similarly, in the Law Commission's 167th Report of 2000, gradualism was called upon, citing the obstacle of evidence and threatened disruption to domestic lives, instead of decriminalisation is outright decriminalization. But this hold-back attitude is being interpreted more as outdated in the face of more current jurisprudence regarding privacy, the individual, and the egalitarian.

In the recent parliamentary debates, officials of the Ministry of Home Affairs were quizzed on why marital rape has not yet been criminalized. Such was their reply that it would be too difficult to enforce such a law, given the context of marriage. This sort of argument is disturbing in its way in protecting existing social practices, as opposed to the rights of individual females.

Democracy does not usually change at a very fast pace, but it is not possible to keep on refusing to give married women the fundamental rights in the eyes of the law that are given to all other citizens.

VIII. CONCLUSION AND THE WAY FORWARD

In the current situation, the existence of the marital-rape exception in the Indian laws creates an apparent tension between the promise of equal treatment in the Constitution and the wording of the Penal Code. Allowing husbands to avoid the possibility of prosecution, the rule challenges basic values of equality, freedom, and individual choice, rather successfully securing female suppression in the hands of patriarchal power.

Critical constitutional review presents that Exception 2, Section 375 IPC becomes unviable by virtue of Articles 14, 15, and 21. It presupposes a randomly drawn boundary between married and unmarried women, entrenches gender discrimination, and denies fundamental bodily control, which is all the information that makes the provision unconstitutional.

Evidence across the national lines reveals that almost every democracy currently considers acts of marital rape as a form of serious offense. India seems oldfashioned and somewhat out of sync with current legal practice by only hanging on to the outside of this norm. Evidence collected in those jurisdictions also indicates that the recognition of the crime will not weaken marriage. Rather, it gets a consensual, trusting, and respectful union.

A recent parting decision of the Delhi High Court once again put the question right up front, and begged the Supreme Court to shed some light in the constitutional darkness created around the exemption of marital-rape. The rights of women will not be the sole consideration of the judgment it delivers, but will be the effect upon constitutional grammar in India over the years and decades.

The striking out of an exception to the Indian Penal Code is thus a necessity in addition to the constitutional bid. Such removal of the clause would not only restore a unified statute with the original democratic tenets but also place the local law closer to the internationally accepted standards of human rights and adjust the interpretation of gender equality and sexual agency.

India is no longer allowed to be held to this archaic belief that marriage teaches everlasting and unconditional agreement. That colonial assumption must be replaced by a forward vision of the institution as a partnership of equals that is underpinned by free and willing agreement. It is only then that the constitutional promises of equality and dignity will no longer be just that, but ones that are applied to all citizens in and out of a registration office and within and without a small wedding hall.

The removal of marital-rape exemption would not be simply changing a statute; it would measure the actual commitment to the ideals of the Constitution and basic human rights of India. The failure to close down that gap vitiates the confidence of the population in the judicial system and puts the country's obligation of ensuring gender justice in serious question.

In the way that the Supreme Court is considering the issue, the court should remember that the constitutional morality would require that any provision, even one that is long-standing or widely accepted in society, be discarded because it undermines fundamental rights. At its least, the constitutional promises of all equality and human dignity will thus necessitate the utter obliteration of the maritalrape exemption.

REFERENCES:

1. K.S. Puttaswamy v. Union of India (2017, Right to Privacy) https://indiankanoon.org/doc/127517806/

2. Indian Kanoon. State of Maharashtra v. Madhukar Narayan Mardikar (1991).

https://indiankanoon.org/doc/524900/

3. Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) https://indiankanoon.org/doc/845216/

4. R v. R, [1991] 1 All E.R. 481 (UK HL) https://lawtutor.co.uk/r-v-r

5. S v. Mvamvu 2005 (1) SACR 54 (SCA) (South Africa) https://www.saflii.org/za/cases/ZASCA/2004/90.html

6. Marital Rape Case, Supreme Court of Nepal, Writ No. 55/2058 (2006)

7. Verma Committee Report, 2013 https://www.mha.gov.in/sites/default/files/2022-08/JS-VermaCommittee-2013%5B1%5D.pdf

8. Law Commission of India, 167th Report (2000). 

https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/01/2023010559.pdf

9. State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 SCC 57 https://indiankanoon.org/doc/524900/

10. RIT Found. v. Union of India, W.P.(C) No. 284/2015 (Delhi HC, split verdict 2022) https://indiankanoon.org/doc/102185307/

11. Meera Dhungana v. Government of Nepal, Writ No. 55/2058 B.S. (2002–03), Supreme Court (landmark marital rape decision)

https://supremecourt.gov.np/web/assets/downloads/sampadan/Jit%20Kumari%20Pangeni%20vs.%20Prime %20Minister%20and%20office%20of%20the%20council%20minister%2C%20singhdarbar%20%28marita l%20rape%20case%29.pdf

12. Catharine A. MacKinnon, Toward a Feminist Theory of the State (1989)- Book. 

https://en.wikipedia.org/wiki/Toward_a_Feminist_Theory_of_the_State

[1] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[2] India Const. art. 14, 15, 21.

[3] Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13.

[4] State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207.

[5] Justice J.S. Verma et al., Report of the Committee on Amendments to Criminal Law (2013).

[6] State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75. 7 Anuj Garg v. Hotel Ass’n of India, (2008) 3 SCC 1.

[7] RIT Found. v. Union of India, W.P. (C) No. 284/2015, High Court of Delhi (2022).

[8] R v. R [1991] UKHL 12, [1992] 1 AC 599 (HL).

[9] S v. Mvamvu, 2005 (1) SACR 54 (CC) (S. Afr.).