India’s Supreme Court has clarified one of the concerns about the lack of legal recognition of marital rape as a crime – by ruling on Wednesday that sexual intercourse with a wife under 18, the legal age of consent, is rape.

The judgment clarifies an inconsistency in statutory law, and despite being limited to the issue it deals with, there are hopes it will have an impact on other challenges to criminalisation of marital rape in most circumstances.

What Indian criminal law says of marital rape

The Protection of Women from Domestic Violence Act, 2005, a quasi-civil law, recognises sexual abuse as a form of domestic violence and, consequently, it recognises marital rape as a legal wrong. Under criminal law, the 1860 Indian Penal Code recognises the possibility of a man raping his wife – only to promptly clarify that such an act within a marriage would not generally be considered to be rape for the purposes of Section 375 of the Code, which defines the offense.

‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’ reads the provision in the Indian Penal Code (IPC) which the Supreme Court has now interpreted, leaving no doubt that a man having sex with his wife under eighteen would be a crime.

Constitutional concerns aside, this exception to rape was also inconsistent with the Protection of Children from Sexual Offences Act, 2012 (or POCSO, as it is known), under which, sexual intercourse with a minor is a crime.

If the two laws are read together, it is possible to interpret them as saying that sex with a wife aged between 15 and 18 would be a criminal offense despite the exception in the IPC. Such an interpretation would be supported by Section 42A of POCSO, the provisions of which appear to override the Penal Code in this regard. However, there appears to have been at least one occasion on which a court refrained from interpreting the law this way. And it is this ambiguity which the Supreme Court has now addressed.

Sexual intercourse with a woman, even if she is one’s own wife, is now rape if the woman is under the age of 18.

Although it is commonly said that marital rape is not a crime in India, the law is not completely unconcerned about the possibility of a man raping his wife. Under Section 376B of the Indian Penal Code, ‘sexual intercourse [by a man] with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent’ is a criminal offense. But, invoking Section 376B of the Penal Code is no easy matter: it is buttressed by Section 198B of the Criminal Procedure Code, which unequivocally states: ‘No Court shall take cognisance of an offense punishable under section 376B of the Indian Penal Code where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offense upon a complaint having been filed or made by the wife against the husband.’ And under the Evidence Act, with reference to marital rape, there is no presumption which favours women in terms of being believed if they say they have been raped by their.

Further, while Section 498A of the Penal Code does deal with cruelty against a wife, ‘cruelty’ (the 498A understanding of it, at least) is not guaranteed to consider allegations of marital rape. What’s left is Section 377, which deals with ‘unnatural offenses’, as the Indian Penal Code calls them. It does not contain a marital rape exception and, so, it may be possible for a court to recognise some forms of marital rape as a criminal offense, which would not otherwise be considered crimes, if they were to fall within the scope of the provision.

The result of this is that, if a court were to recognise the marital rape of an unseparated wife over the age of 18, under current law, it would have to do so obliquely. It is this legal position which is currently being challenged.

Arguments against criminalising marital rape

It would appear that the premise underlying Indian rape law is what may be the most complete expression of patriarchy imaginable: the “ownership” of women by their husbands. This basic premise seems to be evidenced over and over in the text of the law that defines what qualifies as a criminal offense, and what does not. The theme which seems to run through it is that men who historically would have been considered to “own” or have various rights over their wives would not be held criminally liable for sexually assaulting them.

A glaring example of this is the general non-criminalization of marital rape. The argument made to defend this in public discourse may be considered from three angles; three sub-arguments, if you will, all leading to the same result: that the marital rape of women should not be treated as a crime. The first is roughly that women need to be cared for by their husbands (even if the husbands happen to be rapists) and, therefore, imprisoning rapist-husbands is undesirable especially if the couple have children. The second is that women would lie and misuse a law which criminalized marital rape in order to settle unrelated scores with their husbands or to blackmail them. And the third, is there is no such thing as marital rape, and that recognising it would destroy the institution of the family.

The first sub-argument is a paternal construct which concludes that it is in the best interests of a wife (and, possibly, her children) not to have a husband who has raped her be imprisoned. After all, it would lead to the end of the marriage (for it’s said, in this context, no marriage could survive a prison term), and could lead to economic hardship if the husband were the sole breadwinner. There is, of course, no room in this worldview to consider the possibility that a wife may have no desire to be married to a rapist, or that a husband-rapist may, in fact, not be a breadwinner.

The second sub-argument rests on the presumption that women lie, and will file ‘false cases’. There is little evidence to supports this belief apart from an assortment of predictions which various quarters routinely make on their own authority.

And then, of course, the third sub-argument effectively states that marriage somehow ‘evens out’ or negates rape. Those making this particular argument often also ask how marital rape would to be proved, and fail to explain why families which rely on rape for their continued existence should survive. They ignore that laws are being changed (or have been changed) the world over to recognise marital rape, and that most instances of rape, marital or not, do not occur in public spaces, complete with witnesses for ‘proof’.  The likely lack of witnesses does not act as a reason to decriminalise all rape.

All three arguments used to defend the non-criminalisation of marital rape of women — and, indeed, to urge for it — appear to differ in tone and tenor. However, it’s easy to see they all rely on stereotypes. The first argument assumes that women are weak and need their husbands, the second that women are dishonest, and the third that women are the property of their husbands. At the (rather low) risk of straying into the realm of hyperbole, it’s extremely difficult to ignore that these arguments coalesce into the image of wives as weak and dishonest chattels of their husbands — a stereotype which several centuries of patriarchy have familiarised us with.

The Supreme Court seems to have taken the first step to change this situation. However, the fight to uproot rape law from its patriarchal underpinnings is nowhere near over.

(Parts of this article have appeared on the author’s blog here and here)