It started fresh debate about the constitutionality of presumption that marriage is consent for forever sex and unconstitutionality of marital rape

Recent judgement of Delhi Court acquitting a husband of marital rape provoked a debate again about woman’s consent for sex within legal wedlock. A wife claimed her marriage was illegal saying: “A man had taken her to a registry office in Ghaziabad in March 2013 where he forced her to sign a marriage certificate while she was intoxicated. He later raped her and then fled”. Husband denied it and claimed that rape charge was made six months after their marriage, when they were involved in a property dispute.

However, since Justice VirenderBhat found no evidence about sedation, so acquitted and said: “The prosecutrix (the wife) and the accused being legally wedded husband and wife, and the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.” It was criticised that last line is ‘legal’ but not justified. It started fresh debate about the constitutionality of presumption that marriage is consent for forever sex and unconstitutionality of marital rape.

This order reminds the law researchers Justice P A Choudary (who breathed last on May 17, 2014 in Hyderabad) in 1983 invalidating right to restitution of conjugal rights under Hindu law(S9 of Hindu Marriage Act, 1956) as violative of Articles 14, 19 and 21 because legalised forced sex within the marriage.

Section 375 of the Indian Penal Code does not recognise “sexual intercourse by a man with his own wife, if the wife not being under fifteen years of age,” as ‘rape’. While IPC declares it no offence, Section 9 of Hindu Marriage Act allows a husband to force wife to restore ‘his’ conjugal rights through a decree irrespective of herconsent. (Wife can also force husband to enforce conjugal rights under this section)

Nirbhaya incident has kicked up a national debate leading to reform of law of rape. But the marital rape remained the same in spite of recommendation by Justice Verma Committee in 2013. Justice Verma said: “Under the Indian Penal Code, sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.”

However, the report was rejected because rulers thought it would encourage false cases and would damage the institution of ‘arranged marriages’, which are usually based on financial deals between families. In the name of protecting institution of ‘marriage’, wife was legally allowed to be raped. Activists say that the law, as it stands in India, offers no protection to women raped by their husbands but can intervene only in cases of violence, which means if a woman is being repeatedly raped in a marriage and husband does not use extreme violence, she has no recourse in law.

What Justice Verma said in 2013 was emphatically stated by Justice P A Choudary in 1983 (Sareetha v T Venkatasubbaiah AIR 1983 AP 356) three decades ago, indicating the most progressive understanding of concept of liberty and freedom of a human being. None understood Choudary’s concept and even in 2013, Justice Verma’s recommendation was rejected.

Sareetha was a Telugu and Tamil cinema actress of yesteryears, who was married to Venkatasubbaiah when she was hardly 16 year old, and was in high school. After five years of separate living, when she was a popular actress, Venkatasubbaiah sought enforcement of restitution of conjugal rights under Section 9 of the Hindu

Marriage Act to force her to join him, which was decreed. Sareetha questioned constitutional validity of this section.

Justice Choudary wrote, while striking down this provision as unconstitutional as that violated Articles 14, 19 and 21: “It cannot be denied that among the few points that distinguish human existence from that of animals, sexual autonomy an individual enjoys to choose his or her partner to a sexual Act, is of primary importance. Sexual expression is so integral to one’s personality that it is impossible to conceive of sexuality on any basis except on the basis of consensual participation of the opposite sexes. No relationship between man and woman is more rested on mutual consent and freewill and is more intimately and personally forged than sexual relationship. The famous legal definition of marriage given by Lord Penzance in Hyde v. Hyde (1866) LR IP & D 130 (Divorce Court), as a voluntary union between man and woman only highlights this aspect of free association….. Forced sex, like all forced things is a denial of all joy, yet in conceivable cases sex and statutorily be denied and even forbidden by law between specified groups of persons. But no positive act of sex can be forced upon the unwilling persons, because nothing can conceivably be more degrading to human dignity and monstrous to human spirit than to subject a person by the long arm of the law to a positive sex Act. The restitution of conjugal rights by force of arms can be more and can be no less than what late Sri Sri, the greatest of the Modern Telugu poets, described in his poem (Kavitha) as “Rakshasa Rathi”.

He further explained: “There are even graver implications for the wife. An Act of forced sex is no less potent than an Act of consensual sex in producing pregnancy and procreating offspring. The only difference lies in the fact that the latter is with her consent while the former is without her consent. In the process of making such a fateful choice as to when where and how if at all she should beget, bear deliver and rear a child, the wife consistent with her human dignity should never be excluded, conception and delivery of a child involves the most intimate use of her body. The marvel of creation takes place inside her body and the child that would be born is of her own flesh and blood. In a matter which is so intimately concerns her body and which is so vital for her life, a decree of restitution of conjugal rights totally excludes her.”

Justice Choudary traces the origin of this remedy and how it was abolished in advanced countries: The origin of this remedy for restitution of conjugal rights is not to be found in the British common law;

it is the medieval Ecclesiastical law of England, which knows no matrimonial remedy of desertion that provided for this remedy which the Ecclesiastical courts and later ordinary courts enforced. But the British Law commission presided over by Justice Scarman, (as he then was) recommended recently on July 9, 1969 the abolition of this uncivilized remedy of restitution of conjugal rights accepting that recommendation of the British Law commission the British Parliament through section 20 of the Matrimonial proceedings and property Act, 1970 abolished the right to claim restitution of conjugal rights in the English courts. Section 20 of that Act reads thus:

“No person shall after the commencement of this Act be entitled to petition the High Court or any country court for restitution of conjugal rights”.

Although our ancient Hindu system of Matrimonial law never recognised this institution of conjugal rights, yet it fully upheld the duty of the wife to surrender to her husband. In other words, the ancient Hindu law treated the duty of the Hindu wife to abide by her husband only as an imperfect obligation incapable of being enforced against her will. It left the choice entirely to the free will of the wife. In BaiJiva v. NarsinghLalbhai (ILR 1927 Bom 264 at p. 268), a division Bench of the Bombay High Court judicially noticed thisfact in the following words:

“Hindu law itself even while it lays down the duty of the wife of implicit obedience and return to her husband, has laid down no such sanction or procedure as compulsion by the courts to force her to return against her will”.

Prof. Tribe in his American Constitutional Law at page 921 stressed another fundamental facet of the right to privacy problem. He wrote, inter alia.

“Of all decisions a person makes about his or her body the most profound and intimate relates to two sets of questions first, whether when and how one’s body is to become the vehicle for another human beings creation”.

Applying these definitional aids to our discussion, it cannot but be admitted that a decree for restitution of conjugal rights constitutes the grossest from of violation of an individual’s right to privacy applying Prof. Tribe’s definition of right to privacy; it must be said that the decree for restitution of conjugal rights denies the woman her free choice whether when and how her body is to become the vehicle for the procreation of another human being applying Parker’s definition, it must be said that a decree for restitution of conjugal rights deprives a woman of control over her choice as to when and by whom the various parts of her body should be allowedto be sensed. Applying the tests of gaiety and Bostwick, it must be said that the woman loses her control over her most intimate decisions clearly, therefore, the right to privacy guaranteed by Art. 21 of our Constitution is flagrantly violated by a decree of restitution of conjugal rights.

In Jane Roe. v. Henry wade, (1973) 35 L Ed 2d 147, Justice Blackmun for the Court observed that the earlier decisions of the American Supreme Court held that only personal rights that can be deemed fundamental “or implicit in the concept of ordered liberty”……… are included in this guarantee of personal privacy they also make it clear that the right has some extension to activities relating to marriage………procreation, contraception, family relationships, and child rearing and education………”

“Yet the marital couple is not an independent entity with a mind and heart of its own but an association of two individuals each with a separate intellectual and emotional make up. If the right of privacy means anything, it is the right of the INDIVIDUAL, married or single, to be free from unwanted Government instructing a person as the decision whether to bear or beget a child”.

Supreme Court did not agree with Justice Choudary and upheld the constitutionality of Section 9 of Hindu Marriage Act subsequently in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 90. Thus, technically and legally husband can ‘rape’ though it is against constitutionalism, liberty and constitutional morality. At least now the civilized society should rethink about this strange law which sanctified marital rape and uses the state organ ‘judiciary’ to force the spouse to have sex.