The “debate” on marital rape, if it can be called that, has remained a near constant in the discourse of law in the recent years. Generally speaking, two streams of thought have dominated. One may be termed the ‘traditional approach’ and the other the ‘modern or equality approach’. The former suggests that a matrimonial bond is one that the court should not interfere in, arising out of the sanctimonious nature of marriage. The second approach is one that suggests that the sanctity of marriage cannot be placed above the concept of equality, and if, within a marriage, the principle of equality is violated, the law certainly has a duty to step in, and protect the one who is being put at a disadvantage.
The most recent controversy arose out of the Chhattisgarh High Court, where a person accused of raping his wife was discharged by the court of said offence with the following statement- “in this case, complainant is legally wedded wife of applicant number 1 therefore sexual intercourse or any sexual act with her by the applicant number 1/ husband would not constitute an offence of rape, even if it was done by force or against her wish.” The question that arises is, is the role of the judge to apply the law, whatsoever it may be, even if it defeats ideals that are larger than the law, and it vitiates the very source of legitimacy of the said law?
DIVERGENT OPINIONS OF HIGH COURTS
The Kerala High Court recently, in a division bench judgement, held that treating a wife’s body as something that is owed to the husband and committing sexual acts against her will is nothing but marital rape. The Court called for the law of divorce to be revamped and equipped to handle marital damages and compensation.
Another glaring example of the opposite application of law, as that of The Chhattisgarh High Court, came from the Bombay Sessions Court where it granted pre-arrest bail to a man accused of Dowry harassment and forcible sex that led to paralyzation of the victim below the waist, saying that It was “ very unfortunate” that the young girl suffered paralysis however, on the forcible sex aspect it ( the court )could not say that in illegal act had been committed.
Preceding the Kerala High Court judgement, was a detailed, scholarly judgement passed by Justice JB Pardiwala of the Gujarat High Court, where although the eventual conclusion was that the husband cannot be prosecuted, he made detailed observations employing the tools of history and comparative analysis of law, to make a case for outlawing marital rape. He had directed the registry to send their copy of the opinion to The Ministry of Legal Affairs and the Law Commission of India, presumably in the hopes that it would lead to changes in the law, for the better.
In ‘The Morality of Law’ Lon Fuller argues that consistency is a central tenet of the rule of law. Which basically means that, within a given jurisdiction, the laws should be consistent throughout, termed the Consistency Principle. So, in light of the above decisions, where does that leave us?
TWO-PRONGED (IN)CONSISTENCY ARGUMENT
There are generally 2 kinds of inconsistencies, Reconcilable and irreconcilable, and without going into particulars of these two kinds, it can be said that the inconsistencies presented above, are easily reconcilable. How- read on.
Justice Stephen Breyer, while explaining how the internal mechanism of the Supreme Court of the United States works, went into the criteria involved in taking a case up for hearing. One of the criteria as mentioned was that if there was a split among the courts of appeal with respect to a question of federal law, then the court would take it up so as to ensure uniformity in implementation of law. Given that criminal law is the first item under List III, one could argue that it is not a question of Federal or Union Law as described above. Such an argument can only be made if one views the protection of women, by limiting it only to the institution of marriage, instead of understanding it in its true gravity as a violation of Article 14 and Article 21 of the Constitution of India, which then directly lies within the confines of Union law.
Exception 2 of Section 375 creates two classes of women, one married and one not, immunizing the violation of the former’s rights by the husband, simply because she is married, while the latter is protected, simply by virtue of being unmarried, by that very law. Prima facie, this classification doesn’t meet the standard of ‘reasonable classification’ as laid down in Anwar Ali by Justice Ranjan Das. It said “what is necessary is that there must be a nexus between them i.e., the object of the law and the grouping”.
Out of those words, comes a question. The idea behind section 375 is to criminalize the commitment of sexual intercourse, with a woman chiefly, against her will, and, without her consent- this is the object of the law. The grouping is- married and unmarried. And, in one grouping, i.e. married, with the exception, the requirement of consent and will have both been taken away. Therefore, no nexus can be found.
As for the violation of Article 21, the Supreme Court in a number of cases has recognized a right to abstain from sexual intercourse and to be free of unwanted sexual activity enshrined in these broader rights to life and personal liberty.
As a welfare state, this inconsistency that hinders the protection of the social rights of a large section of the population should be enough for the Supreme Court or the Legislature to intervene and uphold both Article 14 and 21, two ends of the golden triangle of the Constitution.
The second inconsistency arises out of the interpretation of Article 15 of the Constitution as well. Article 15 (1) states that, the state shall not discriminate against any citizen on the ground of Race, caste, sex, place of birth… Then the question is, why is a woman being discriminated against with this state, immunizing the actions of her husband giving him the right to do whatsoever he wishes- creating an imbalance in a relationship, and giving undue advantage to a male on the basis of sex. It must be noted that, the of non criminalisation of marital rape is also a violation of Article 15 clause 3 which enables the state to make laws for the protection of women and children.
UNJUST LAWS
At a recent event the noted feminist scholar, Kalpana Kannabiran, although in a different context, made an argument with respect to ‘unjust laws’, and it will be my attempt to apply the said analysis to the question we have at hand. She spoke of recent cases of denial of bail by various courts to be, considered, rational decisions in the interpretations of law. In the same vein, judgements from The Chhattisgarh High Court and Bombay Sessions Court were rational applications of law, and yet, all that led to, was grave injustice. Why is this the case when “no statute is above the constitution and the constitution affirms and insists on the right to human dignity, on the the right to life with dignity, on the right to personal liberty except as per procedures established by law, and that procedure must be with due process, be fair and transparent- and must be seen to be so.”
There have been plenty of examples where various courts have struck down provisions of law, whether it be the adjecently placed section 377, first by the Delhi High Court, and then later by the Supreme Court in Navtej Johar, or be it the NJAC judgement striking down a constitutional amendment, and so on, then the question is that why have the courts shied away from striking this down- when it is clear that it doesn’t fit the scheme of our founding document?
In a De jure government, what becomes of the people, when the leaders stray from the path and the mechanisms established to protect the position of the citizens failed to bring in favourable results?
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