The Supreme Court is presently hearing a challenge to the exception of marital rape in the definition of what constitutes ‘rape’. India is one of the few countries that does not criminalise marital rape. The relevant section on ‘Rape’ both in the Indian Penal Code and, now, in the Bharatiya Nyaya Sanhita provides an exception to the offence of rape - “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

This exception to rape found in the Indian Penal Code, is often traced to what is called Hale’s principle - referring to a statement made by a British jurist Matthew Hale, who said “but the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract."

Home Minister Amit Shah, while introducing the Bharatiya Nyaya Sanhita, had said that these three new criminal laws represented the decolonisation of laws and to give first priority to crimes against women and children. However, as is now known to most, the new laws retain majority of the colonial laws and only builds on its draconian intent in the form of the few newly added provisions. Unsurprisingly, this exception in rape law under the IPC, continues as in the Bharatiya Nyaya Sanhita.

This exception to marital rape was challenged first before the Delhi High Court, which gave a split verdict, with one of the judges striking it down as unconstitutional and the other judge upholding it. Both the judges granted leave to appeal to the Supreme Court, where it is now being heard.

The Union Government has filed its reply before the Supreme Court, and has taken the stand that there is a need to provide this exception as “in an institution of marriage” there is a continued expectation “to have reasonable sexual access of one from the other”.

It states that “these obligations and expectations” constitutes a sufficient basis “to distinguish qualitatively between an incident of non-consensual sex within the marital sphere” from those of a stranger “who seeks sexual congress”.

While making the minimal concession that these expectations do not entitle the husband to coerce his wife into sex against her will, it dilutes the very concept of consent itself by stating that the idea of consent “would vary in case of a marital relationship when compared to any other relationship outside the institution of marriage.” Such a stand where the concept of consent loses its meaning within a marriage can only be understood as being, effectively, a reiteration of the Hale’s principle.

The Government's stance, by prioritising “preserving the institution of marriage," demeans a woman's right to autonomy and bodily integrity. The government thus views marriage as extinguishing the autonomy of the woman over her own body, and treating her as chattel over which the husband has absolute rights. The loss of a woman’s right to bodily integrity is treated as collateral damage that it deems necessary to safeguard the institution of marriage. Any understanding of equality would have to acknowledge that any “institution”, if based on the sexual violence of one person against another, must and should not need preserving but being reviewed in ways that foster greater equality. The Government's stance, however, only reaffirms its disregard of the idea of equality.

In 2007, the UN Committee of the Elimination of Discrimination against Women recommended that India should “widen the definition of rape in its Penal Code to reflect the realities of sexual abuse experienced by women and to remove the exception of marital rape from the definition of rape…” The National Family Health Survey 5 (2019-21) found that among married women aged 18-49 who have ever experienced sexual violence, 83 per cent report their current husband and 13 per cent report a former husband as the perpetrator.

The Justice Verma Committee Report not only recommended the removal of the exception for marital rape but also proposed that amendments to the law should make clear that the relationship between the accused and the complainant is irrelevant to the inquiry into whether the complainant consented to the sexual activity. The Committee recognised that even where marital rape is acknowledged as a crime, there is a risk that judges might view it as less serious than other forms of rape, leading to more lenient sentences. It recommended that, similar to reforms implemented in South Africa, the law must explicitly provide that marital relationship should not be regarded as a mitigating factor justifying a lower sentences for rape.

The stand of the Union Government should not be surprising given that this is a Government that believes in the Manusmriti, which places the woman in an inferior position and mandates that “A virtuous wife should constantly serve her husband like a god, even if he behaves badly, freely indulges his lust, and is devoid of any good qualities”. The same forces of Brahminical patriarchy opposed the Hindu Code Bill, in the name of tradition.

At this juncture, it would be essential to recall Dr. Ambedkar's words, spoken in the context of the Hindu Code Bill. “To leave inequality between class and class, between sex and sex which is the soul of Hindu society untouched and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap”

The Supreme Court is now put to the test - will it follow constitutional morality and uphold the promise of equality guaranteed under the Constitution or fall into the trap of perpetuating inequality and institutionalising violence in the name of tradition and preserving the “institution” of marriage.