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TRACING THE HISTORY OF MARITAL RAPE EXCEPTION IN INDIA.
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TRACING THE HISTORY OF MARITAL RAPE EXCEPTION IN INDIA.
AUTHORED BY - E.A. ASHWIN DATHA &
DR. AARATI TYAGI
The History of exception of marital
rape can be traced back to the doctrine of coverture given by Matthew Hale who
was the Lord Chief Justice of the Court of King's Bench. In one document with
the title "History of the Pleas of the Crown" 1736 that was published
i.e., around sixty years after the death of Matthew Hale. In the said document,
it is documented that Matthew Hale has held that in a marital relationship, the
husband cannot be penalized for the offence of rape if the wife is the victim
of such action. The condition is that a valid marriage must exist. The
justification was that in a marriage, there is mutual consent of both the
husband and wife at the time of the marriage and by being married, the wife has
given up her to her husband and such consent cannot be taken back as long as
the marriage exists. This reasoning can
also be seen in a book written by one Mr. John Frederick Archbold in a book
with the title ‘Pleading and Evidence in Criminal Cases’ and it was published
in the year 1822.[1] By reading
the book written by John Frederick Archbold, it can be seen that during the
early 19th century, there were many uncertainties regarding applying
the doctrine of coverture that was given by Matthew Hale in some situations and
the question remained as to whether a husband can commit rape on his own wife. It is useful to refer to the case of R. v.
Clarence[2].
The facts of this case are that a husband who knew that he had a sexually
transmitted disease called gonorrhoea still had sexual intercourse with his
wife by suppressing this fact. The wife was not at all aware of this aspect.
Later, when she found out, a dispute arose and he was charged and was
prosecuted for an offence as defined under Sections 20 and 47 of the Offences against
the Person Act, 1861. The section 20 deals with unlawfully and maliciously
inflicting grievous bodily harm and Section 47 deals with the offence of
assault, occasioning actual bodily harm. It was argued at the Court that if the
wife knew about the disease, she would have not given consent. It was also
argued at the court and the main legal question was if it was required to be
considered the wife's consent was still implied considering the fact that she
would have never consented to have sexual intercourse if she had knowledge
about the disease that her husband had. It was argued that the concept of
implied consent to intercourse stands cancelled when the husband has a disease.
The case was decided by 13 judges. The majority of the Judges ruled against the
conviction of the husband. Only four
Judges gave a dissenting opinion. It is
important is refer to the dissenting opinion given by Justice Hawkins. The
dissenting judges were filled with discomfort arising from the majority’s
decision, which acquitted the offending husband. Justice Hawkins expressed his
reservations by stating that if the prevailing interpretation of the law were
interpreted to acquit the husband, he did not want to be associated with a
ruling that seemingly allowed a husband to escape punishment despite committing
such a heinous act against his wife. The English courts also diluted the common
legal doctrine which tells that once a female gets married, it becomes deemed
that such a person has given her irrevocable consent to sexual intercourse to
the husband. The law did not change fast in the United Kingdom (UK); which is
considered to be the place where this doctrine has emerged. It is evident that
rape was criminalized by law for the first time by passing the Sexual Offences
(Amendment) Act, 1976. The English legal system gradually changed the
longstanding common law doctrine that assumed a woman’s irrevocable consent to
sexual relations upon marriage. Surprisingly, even in the United Kingdom, where
this doctrine originated, legal reform proceeded at a sluggish pace. It’s
important to know that the Sexual Offences (Amendment) Act of 1976 was the
first law that defined the offence of rape. A careful examination of the
definition of rape reveals a potential loophole related to the legal common law
principle, particularly when the perpetrator is the husband and the victim is
his wife. This loophole arises due to the inclusion of the term ‘unlawful’
alongside ‘sexual intercourse’ in the definition of rape. The issue came to
light in a case that reached the House of Lords following a judgment by the
Court of Appeal (Criminal Division) in R. v. R[3].
In the said case, the Court of Appeal had dismissed the husband’s appeal
against his conviction for raping his wife, effectively reading down the
exception of marital rape based on the Common Law Doctrine that previously
shielded husbands from being held accountable for rape within marriage based on
the assumption that consent was irrevocable once entered into marriage. The decision rendered by the House of Lords
in the case of R. v. R (supra) prompted the English Parliament to amend the
existing law, specifically the Criminal Justice and Public Order Act of 1994.
This amendment introduced Section 142 which deals with sexual offences. Under
this new provision, Section 1 of the Sexual Offences Act 1956 which dealt with
rape of a woman was replaced with the following section: ‘Rape of woman or
man.’ The revised law makes it an offence for a man to rape either a woman or
another man. A man is considered to have committed rape if he engages in sexual
intercourse (whether vaginal or anal) with a person who does not consent to it
at the time of the act. Furthermore, the man must be aware of the lack of
consent or act recklessly regarding the other person’s consent. Notably, this
amendment made the law gender-neutral and eliminated the possibility of relying
on the Common Law Doctrine as a defence by removing the term ‘unlawful’ that
previously preceded the phrase ‘sexual intercourse’ in the statute.
In India, lawmakers carefully considered the impact of deviant and
extreme cases when drafting the Indian Penal Code (IPC). Originally referred to
as Clause 359, Section 375 of the IPC now defines rape more comprehensively
than its earlier version. However, the initial draft did not adequately address
the rights of girl-children who were often married at a young age.
Interestingly, the use of the term ‘own wife’ instead of ‘just wife’ in the
Exception clause was a curious choice. Note B in the Chapter of General Exceptions
suggests that lawmakers mistakenly believed that husbands had an unrestricted
right to engage in sexual activity with their wives, regardless of consent.
This chapter aimed to avoid redundancy by incorporating exceptions specific to
certain provisions. For instance, Clause 470 pertains solely to defamation,
while Clause 359 deals exclusively with conjugal rights related to rape.
Fortunately, further scrutiny led to revisions, including a report submitted by
the Indian Law Commission. Paragraphs 444 and 445 of the report shed light on
the impact concerning child brides. Mr. Thomas raises objections to the
exception that declares sexual intercourse by a man with his own wife is never
considered rape. He questions the validity of this exception, emphasizing the
need for protection for child brides until they are old enough to reside with
their husbands. Mr. Hudleston and Mr. A.D. Campbell share Mr. Thomas’s
concerns. While marriages among Mahomedans and Hindus often occur before female
puberty, brides typically remain with their parents until they are fit for
marriage consummation. It is presumed that parents, as natural guardians, will
prevent abuse. However, there may be cases where legal intervention is
necessary to prevent premature exploitation of women in the guise of marital
rights. Excluding cases where the wife is under nine years of age from the
exception could address such situations. Instances of husband abuse in such
cases would then fall under the fifth description of rape. Consequently, the
first statutory version of Section 375, enacted in 1860, modified the provision
to deem consent immaterial when a man engaged in sex with his wife, who was
under ten years of age, as opposed to the nine years specified in Clause 359.
The Common Law Doctrine, initially found in Clause 359, laid down one
exception: it would not apply if the wife was under 10 years of age. Clause 359
later evolved into Section 375 when incorporated into the Indian Penal Code
(IPC) in 1860. It’s relevant to consider how Section 376 was originally worded
when it became part of the statute. This context is important in the context of
the current ‘high minimum mandatory sentence’ of 10 years in Section 376(1) of
the IPC. Notably, the original Section 375 did not differentiate based on age
between a child subjected to forced sexual intercourse by a husband or a
stranger; the age threshold, however, remained under 10 years. Subsequent
amendments in 1983 raised the age threshold to ‘under sixteen years of age’ for
children, while the threshold for child brides remained at ‘under fifteen years
of age. Additionally, an important change introduced by the Act pertained to
the inclusion of a fifth circumstance. This provision effectively invalidated
consent given by a woman due to her mental state, which could result from
unsoundness, intoxication, or the administration of stupefying or harmful
substances. Such circumstances would render the victim incapable of
understanding the nature and consequences of the act to which she had consented.
Previously categorized as the fifth circumstance, the provision dealing with
the immateriality of consent granted by a child was subsequently renumbered as
the sixth circumstance. Furthermore, the threshold for unmarried girl-children
subjected to sexual acts was raised through an amendment in 2013, setting it at
‘under eighteen years of age’. In the same vein, other relevant amendments in
2013 expanded the definition of rape by introducing Clauses (a) to (d) in
Section 375. These clauses described various sexual acts that a victim could be
subjected to. Additionally, the Act inserted provisions such as Explanations 1
and 2, along with an accompanying proviso and Exception 1. Notably, the
exception related to marital rape was renumbered as Exception number 2. To
address the history of rape law, it is essential to highlight the amendments
introduced in 2018 under the Criminal Law. These amendments impacted specific
provisions of the Indian Penal Code, the Evidence Act, the Code of Criminal
Procedure, and the Protection of Children from Sexual Offences (POCSO) Act. A
notable discrepancy arose between cases involving a girl-child subjected to
sexual acts within marriage and those outside marriage. For the former, the age
threshold remained “under fifteen years,” while for the latter, it increased to
“under eighteen years.” This inconsistency persisted until the Supreme Court’s
ruling in the case of Independent Thought vs. Union of India[4].
In that judgment, the threshold age for child brides experiencing sexual intercourse
by their husbands was raised to “under eighteen years.” The court specifically
examined the exception of marital rape, particularly in the context of child
brides, considering the incongruity between the sixth circumstance and
Exception 2 appended to Section 375 and the POCSO Act.[5]
CONCLUSION
The history of marital rape exception
traces back to Matthew Hale's doctrine of coverture, shielding husbands from
prosecution for raping their wives. Despite early legal texts and precedents,
discomfort among judges and societal evolution prompted legal reforms. In the
UK, the 1976 Sexual Offences Act marked the first criminalization of marital
rape, but loopholes persisted until the gender-neutral amendment in 1994.
India's legal journey mirrors this evolution, with amendments addressing child
brides' rights and expanding rape definitions. The landmark 2018 reforms,
spurred by cases like Independent Thought vs. Union of India, aimed to align
laws with evolving understandings of consent and equality, underscoring the on-going
need for legal vigilance to protect individuals from sexual violence within
marriage and ensure justice for all.
Article Information
TRACING THE HISTORY OF MARITAL RAPE EXCEPTION IN INDIA.
Authors: E.A. Ashwin Datha, Dr. Aarati Tyagi
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/06/17
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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