Marital rape exception and unnatural sex: Ghosts of colonialism

This article captures the enigmatic world of the marital rape exception and 'unnatural sex', a subject as contentious as it is critical, where the boundaries of consent, autonomy and morality become blurred.

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IN the realm of law and justice, there exists a peculiar and unsettling intersection where the private sphere of marriage collides with the public duty of safeguarding individual rights and dignity.

It is a perplexing juncture where societal norms clash with legal principles, where love and trust metamorphose into suffering and silence.

Welcome to the enigmatic world of the marital rape exception and 'unnatural sex', a subject as contentious as it is critical, where the boundaries of consent, autonomy and morality become blurred, and where the law must grapple with the uncomfortable reality that sometimes, the greatest violations occur within the sanctum of wedlock.

In a recent ruling, the Jabalpur Bench of the Madhya Pradesh High Court, in Umang Singhar versus State of Madhya Pradesh, held that a husband cannot be held liable for 'unnatural sex' with a wife conducted without her consent.

The Order further stated that the sexual relationship between a husband and wife cannot be restricted to only the objective of procreation. The Order, in principle, renders Section 377 of the Indian Penal Code (IPC) redundant in cases of 'unnatural sex' between a husband and wife engaged in the absence of the wife's consent by bringing this Section under the ambit of the second exception to Section 375 of the IPC.

The judgment conflates non-consensual sex and non-consensual 'unnatural sex'. It goes on to make the only provision available to a wife against her husband for non-consensual sexual activities inapplicable.

Also read: Section 377, 3 years on: Walking down the aisle of history – The Leaflet

This essay examines the background of the marital rape exception as well as the criminalisation of non-normative sexual conduct. It further examines the legality of the Umang Singhar Order and presents three counters to the arguments provided in the Order.

A troubled institution

For centuries, marriage has been considered a sacred institution, a covenant between two individuals bound by love and mutual respect. However, within the walls of this revered institution, a shadowy spectre haunts the lives of countless individuals— the spectre of marital rape.

Historically, many legal systems, including those in liberal democracies, harboured a grim exception: the recognition of marital rape as a criminal offence was not acknowledged by them.

It was a chilling omission, one that implied that once a woman entered the institution of marriage, they forfeited their right to exercise autonomy over their physical being. This exception perpetuated a dangerous notion that consent could be indefinitely assumed within the confines of matrimony.

Also read: Sections 377 and 375 of IPC: united we stand for limited inclusivity, divided we fall prey to heteronormativity – The Leaflet

The initial steps

Exception 2 to Section 375 reads, "Sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape." The same has been the origin of the woes of married women invalidating their charge of rape against their husbands.

However, a welcome reform was ushered in by the Supreme Court of India in Independent Thought versus Union of India. It was ruled in this case that the offence of rape is constituted whenever a male engages in sexual conduct with a female under the age of eighteen, regardless of the status of her marriage.

It was determined that Exception 2 to Section 375 of the IPC establishes an arbitrary and artificial differentiation between married and unmarried girl children, lacking a logical connection to any discernible aim.

It was observed that the artificial distinction being referred to in the statement conflicts with the philosophical and ethical principles outlined in Article 15(3) of the Constitution, as well as being inconsistent with Article 21 of the Constitution.

Moreover, this stance is inconsistent with the underlying principles of some statutes, which prioritise the bodily autonomy of female minors and their ability to make decisions regarding their reproductive health.

Also, it was noted that the inconsistency observed contravenes the provisions outlined in the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), which should take precedence.

Also read: Marriage equality judgment: A Suresh Koushal moment for gender and sexual minorities in India – The Leaflet

The Supreme Court has also determined that Exception 2 to Section 375, specifically concerning female minors under the age of 18, should be invalidated and modified to state that sexual intercourse or sexual acts between a husband and his wife shall be considered rape if the wife has not yet reached the age of eighteen.

To this extent, while the proposed new legislation on criminal offences, called the 'Bharatiya Nyaya Sanhita', doesn't do away with the second exception, it does follow the ruling of the Supreme Court to lay down the minimum age as eighteen years in Exception 2 to the Section 63, the proposed new Section for the offence of rape.

However, the Bill has been duly referred to a 'standing committee' and is currently pending enactment as the primary legislation pertaining to criminal offences.

The marital rape judgement

In RIT Foundation versus Union of India, a division Bench of the Delhi High Court delivered a split judgement in response to a score of petitions filed against Exception 2 to Section 375, called the marital rape exception.

Justice Shakdher, while deciding against the marital rape exception, ruled that the provisions relating to engaging in sexual intercourse without the consent of one's spouse, whether they are currently married or separated, violates Articles 14, 15, 19(1)(a), and 21 of the Constitution.

Additionally, he stated that husbands who have committed the offence are not included in the definition of "relative" as stated in Section 376(2)(f) of the IPC. Furthermore, the presumption established under Section 114A of the Indian Evidence Act will not apply to them, he averred.

Also read: Unravelling the marriage equality judgment – The Leaflet

Therefore, he concluded that the provisions, such as Exception 2 to Section375, Section 376B of the IPC, and Section 198B of the Code of Criminal Procedure (CrPC), shall be invalidated starting from the date of the ruling.

However, Justice Shankar ruled in support of the Exception 2 to Section375. He argued that the petitioners' argument is founded on an incorrect assumption that every instance of sexual activity between a man and a woman without consent constitutes rape.

The judge further observed that the Exception does not infringe upon Article 14 but rather is grounded on a clear distinction that has a rational nexus to the objective of the Exception and Section 375.

According to him, the Exception does not infringe upon the provisions of Article 19(1)(a) or Article 21, and none of the indicia can be deemed unconstitutional.

He also determined that the court is not authorised to replace its subjective assessment with the perspective of the democratically elected legislature; thus, the challengers against the constitutional validity of Exception 2 to Section375 and Section 376B of the IPC and Section 198B of the CrPC do not stand.

Subsequently, Ruth Manorama, a Dalit activist, lodged a new petition with the Supreme Court in late 2022 challenging the marital rape exception. On January 9, 2023, a Supreme Court Bench consisting of the Chief Justice of India grouped these petitions and set March 21, 2023, as the date for their hearing. The case is currently under consideration by a three-judge panel of the Supreme Court.

A colonial legacy

The concept of 'unnatural sex' has been a point of contention within the legal and moral landscapes. It is a term that carries a heavy burden of judgment, laden with societal norms and prejudices.

What is deemed 'natural' or 'unnatural' has evolved over time, often reflecting the biases and fears of a given era. This, too, raises questions about personal autonomy and the State's intrusion into the most intimate aspects of our lives.

Section 377 of the IPC reads, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

This specific clause was introduced during the era of British colonial rule in order to impose penalties for engaging in sexual acts contrary to normative standards.

Also read: The Case Against 8: Review of a thrilling courtroom documentary on marriage equality – The Leaflet

The crime under consideration pertains to the act of participating in sexual intercourse that deviates from the norms of society, particularly involving a person of the male gender engaging in the same-sex act with another male, a person of the female gender engaging in the same-sex act with another female, or engaging in any sexual activity involving any other species, regardless of the individual's gender.

The history of the constitutionality of this particular Section is intriguing. In a significant ruling, the Delhi High Court declared Section 377 unconstitutional in Naz Foundation versus State (NCT of Delhi).

The provision in question, which deemed consenting sexual acts between adults in private as illegal, was determined to be in contravention of Articles 21, 14, and 15 of the Constitution.

However, in the case of Suresh Kumar Koushal versus Naz Foundation, the Supreme Court rendered a decision that overturned the judgment of the Delhi High Court. The High Court's ruling stated that individuals who engage in consensual sexual intercourse in the usual manner and those who engage in non-heteronormative sexual intercourse should be considered as distinct groups.

The Supreme Court, however, disagreed with this classification, asserting that individuals belonging to the latter group cannot argue that Section 377 of the IPC is arbitrary or based on irrational differentiation.

Also read: Analysing fair labelling in rape laws: A reading of the Delhi High Court's verdict on constitutionality of marital rape – The Leaflet

The purpose of Section 377 is to establish the specific offence and its corresponding punishment, which can be imposed against an individual if they are proven guilty in a trial conducted in accordance with the provisions outlined in the CrPC and other related statutes.

Hence, the conclusion was reached that Section 377 of the IPC did not contravene the stipulations outlined in Articles 14 and 15 of the Constitution.

The Supreme Court explicitly acknowledged that its ruling was constrained to assessing the Delhi High Court's construction of the legality of Section 377. It determined that this Section did not exhibit any constitutional flaws.

It further noted that despite this ruling, the legislature with appropriate authority retains the freedom to deliberate on the necessity and appropriateness of removing or modifying Section 377 from the legal code.

In the case of Navtej Singh Johar versus Union of India, a Constitution Bench of the Supreme Court overturned the decision made in Suresh Kumar Koushal. It determined that sexual intercourse between consenting adults within the confines of their private space does not have any adverse impact on public decency or morality. 

Also read: Supreme Court to hear petitions challenging marital rape exception in Indian Penal Code – The Leaflet

Hence, the current manifestation of Section 377 contravenes the provisions outlined in Article 19(1)(a). The court ruled that the constitutionality of Section 377 is compromised when it criminalises any consensual sexual connection between two adults, regardless of their sexual orientation, whether it be between men, a man and a woman, or women.

Nevertheless, if an individual were to partake in any form of sexual conduct with an animal, the aforementioned provision of Section 377 is deemed to be in accordance with the Constitution and shall continue to be classified as a crime.

Also read: Justice C. Hari Shankar's defence of marital rape is a homage to patriarchy – The Leaflet

The court ruled that engaging in any act falling within the scope of Section 377 without the consent of any party involved would result in legal consequences. Moreover, it stated that acts that are non-consensual and have been rendered illegal by Section 377 have already been classified as punishable offences under Section 375 and the POCSO Act.

The Order in question

The Madhya Pradesh High Court, while hearing the petition under Section 482 of the CrPC in Umang Singhar, passed an Order in a matrimonial dispute. The court, while relying on various judgments of the Supreme Court, held that the amended definition of rape under Section 375 overrides the offence of non-consensual 'unnatural sex' as given under Section 377.

Therefore, any 'unnatural' sexual activity, defined as one not done with the purpose of procreation or oral and anal sex between husband and wife will not make an offence despite being non-consensual as it will be covered under the ambit of the Exception 2 of Section 375.

The moot question of the dispute, as stated in the Order itself, was whether the offence given under Section 377 between husband and wife could be compared to the offence defined under Section 375.

In the aftermath of the Nirbhaya case, the Criminal Law (Amendment) Act of 2013 was enacted by the Parliament based on the recommendations of the Justice Verma Committee. The amendment expanded the scope of Section 375 and incorporated stricter provisions for the offence of rape.

The amendment brought even anal and oral sex within its ambit. The same was observed in the landmark judgment of Navtej Johar, which also discussed the repugnancy between Section 377 and Section 375.

The Madhya Pradesh High Court Order also relies on the judgments of Dharangadhra Chemical Works and T. Barai to hold that Section 375, being the newly amended Section, overrides Section 377 and goes on to hold even intercourse deemed to be 'unnatural' as rape and subsequently punishable as per Section 376 and not Section 377.

The lacunas

The major shortcoming of this reasoning is that Section 375 and Section 377 are not inconsistent with each other so as to make the application of the principle laid down in Dhrangadhra Chemical Works possible.

While the amended Section 375 does have an expanded scope and goes on to include offences of the nature described under Section 377, it does not, in effect, include all kinds of sexual activities that might be deemed 'unnatural'.

'Unnatural sex' has not been defined in the IPC or any other legislation. It has been generally observed to include oral and anal sex in the Navtej Johar judgment, but it cannot be limited to the same. With the onslaught of modernity, sexuality has evolved, and people have begun indulging in sexual activities of a wide variety, which are not always in accordance with societal norms.

Furthermore, the reliance placed by the Madhya Pradesh High Court on the Navtej Johar judgment is based on observation, as noted in the Order itself, and the same is not binding on the court.

Therefore, it would be erroneous to say that Section 375 overrides Section 377 and that any sexual interaction that deviates from the natural order between a male and a female could be covered under Section 375.

Also read: Supreme Court refuses to stay Karnataka High Court order declaring marital rape exception as not absolute, to hear husband's appeal in July – The Leaflet

Furthermore, prior to the Navtej Johar judgment, Section 377 did not have any criteria for consent. Every sexual act that was deemed to be contrary to the natural order was punishable under the said Section, irrespective of its consensual nature. The same was the primary reason behind the Navtej Johar judgment importing the consent requirement for the inapplicability of Section 377.

Navtej Johar held Section 377 unconstitutional to the extent that it criminalises sexual activities between consenting individuals, which are so-called 'unnatural'. It restrained from holding the entire Section 377 as unconstitutional because the essential nature of the said Section in combating bestiality and other forms of non-consensual sexual activities, which could not be strictly covered under Section 375, was apparent to the Bench.

For the same reason, discarding Section 377 to include the offence of 'unnatural sex' between a husband and a wife under Section 375 would be against the spirit of the Navtej Johar judgment, which purported to help innocent people indulging in consensual 'unnatural sex' and not to protect perpetrators who have non-consensual 'unnatural sex' with victims.

Also read: Criminalizing marital rape: When is an exception not an exception? – The Leaflet

Moreover, bringing the offence as mentioned under Section 377 under the ambit of Section 375 would limit the scope of prosecution and create unnecessary hindrance for victims, especially wives. On account of the marital rape exception, wives have a very limited scope of redressal against sexual violence perpetrated against them by their husbands.

As noted in the RIT Foundation judgment itself, their recourse lies in Section 377 and the Protection of Women from Domestic Violence Act of 2005. While the Act addresses issues of violence, it does not involve activities of a strictly sexual nature.

Section 377 is only recourse against sexual exploitation of wives by husbands. It presents the wives with an option to prosecute their husbands in cases of non-consensual 'unnatural sex' perpetrated against them. If the offences under Section 377 are subsumed under Section 375 so as to immunise a husband against all kinds of non-consensual sexual activities under Exception 2, it would be a travesty of justice.

Also read: Husband's conjugal expectations can't override wife's right to say no, Amicus Curiae tells Delhi HC in the challenge to the marital rape exception case – The Leaflet

Conclusion

The Order given by the Madhya Pradesh High Court, aiming to classify non-consensual 'unnatural sex' within a marital union under the purview of Section 375 of the IPC, gives rise to numerous significant apprehensions. The aforementioned decision raises concerns not only regarding its legal validity but also regarding its potential ramifications for safeguarding women's rights and autonomy within the context of marriage.

The recent Supreme Court ruling on marital rape, which includes non-consensual sexual behaviours under Exception 2, may undermine efforts to address the issue. This ruling restricts legal options for victims, including married individuals, and fails to consider the diverse range of consenting sexual behaviours. The broadening of Section 375 to include 'unnatural sex' within marriage could undermine progress and perpetuate harmful stereotypes.

Also read: Marriage equality judgment: An explainer – The Leaflet

Given these problems, it is crucial for both the legal system and society at large to persistently engage with the intricate interplay between marriage, consent and sexual autonomy.

Ensuring the protection of individual rights and upholding human dignity, regardless of one's marital status, is paramount. Furthermore, it is imperative to ensure that legislative requirements align with the dynamic societal norms and ethical standards.

The reconsideration and reaffirmation of justice, equality and the safeguarding of individual rights within the context of marital relationships can be facilitated through the Supreme Court's review of the pending petition challenging the marital rape exception, thereby necessitating the overruling of the Madhya Pradesh High Court Order.