Marital rape exception to the criminal offence of rape in the erstwhile Indian Penal Code (IPC) and current Bharatiya Nyay Sanhita (BNS) has remained a bane in recent times. While the petition that challenged this exception as unconstitutional remains pending in the Supreme Court, and much has been written about why the exception has no place in criminal law, the Chhattisgarh high court delivered a judgment on February 10 in the case of Gorakhnath Sharma vs. State of Chattisgarh. This judgment confirms our deep-seated conviction that indeed, the exception must be eliminated.
The facts of the case are as follows: The accused – a 40-year-old husband – forcibly inserted his hand in the rectum of his victim wife (age unknown) which led to two perforations on her rectum, resulting in abdominal pain and excessive bleeding. A few days later, she died due to the forcible anal intercourse. She gave a dying declaration before her death, recorded by an Executive Magistrate at the hospital, which the court did not find as reliable evidence. The court ruled that having non-consensual sexual intercourse with a wife above the age of 15 years would not constitute rape under Section 375 of the IPC (now section 63 of the BNS). It further read the marital rape exception into Section 377 of the IPC (a provision which defines and prescribes punishment for ‘unnatural offences.) while no such exception was explicitly stated in Section 377. The court also exonerated the husband from the offence punishable under Section 304 IPC – culpable homicide not amounting to murder. As a cumulative outcome, the court acquitted the husband of all offences for having forcible anal intercourse with his wife to such a degree of violence and brutality that it led to perforation of her anus, and subsequently her death.
Validity of the dying declaration
The victim had recorded a dying declaration that clearly stated, in the words of the judgment, “that due to forcible sexual intercourse by her husband, she became ill” and that “she cannot explain how she was injured.” She recorded the same in a subsequent statement as well. The magistrate admitted before the court that he had not fully recorded what the deceased woman told him, and that he had given an additional statement about the same. The magistrate also omitted the doctor’s name in the presence of whom the dying declaration was recorded, which is usually included to verify the mental fitness of the deceased person to give the dying declaration. The high court judgment did not record the magistrate’s reasons for failure on both these counts. Instead, the court was not convinced about the veracity of the dying declaration due to these reasons.
The Supreme Court, in a catena of cases, has held that dying declarations can be the sole basis of conviction even without corroborative (supporting) evidence, if it inspires the full confidence of the court – that is, if it is rendered voluntarily, consistent, credible and devoid of any tutoring. It was no one’s case that the deceased woman was medically unfit to make the dying declaration.
However, the Chhattisgarh high court relied on the Supreme Court judgment in Naeem vs. State of Uttar Pradesh (2024) to state that the accused could not be convicted owing to the lack of corroborative evidence, thereby indicating that the dying declaration did not inspire the confidence of the court.
The trial court judgement in Gorakhnath Sharma had convicted the accused based on reliable corroborative evidence for the dying declaration – namely, the post-mortem report which stated the cause of death as ‘peritonitis and rectal perforation’ (injury to the abdomen and rectum). The Chhattisgarh high court judgment conveniently ignored the report as a crucial piece of corroborative evidence to substantiate the deceased woman’s dying declaration, and gave no reasons for the same.
Statutory (mis) interpretation
It comes as no surprise that the court has applied the literal rule of statutory interpretation, and strictly remained within the confines of the written law. This rule handcuffs judges from doing anything more than a plain reading of the written text, even if it leads to absurdity or irrationality. On the contrary, the golden rule of statutory interpretation rule propounded in Grey vs. Pearson (2001) by Lord Wensleydale, deviates from the literal interpretation rule and grants judges the flexibility to extend beyond the written text if the plain meaning leads to irrational results. The golden rule can be applied in two ways – the narrow and broad approaches. The narrow approach introduced in R vs. Allen (2000) states that when multiple interpretations are possible, the judge must adopt an interpretation that best represents the legislative intent. The broad approach, applied in various judgements, allows deviation from the express meaning of the text to prevent injustice.
The Chhattisgarh high court failed to apply the golden rule of statutory interpretation. Because the victim was married to the accused and due to the marital rape exception under S. 375 IPC (now S. 63 BNS), the court refused to dispense justice even though the outcome of this interpretation was a gross miscarriage of justice. Here, the wife has been raped to death by her husband, yet the husband was not convicted only because he was the husband; the same act by any other person would have attracted conviction and possibly a severe punishment.
Some may argue that applying the golden rule would have violated legislative intent – which was to exonerate husbands from marital rape. There is no doubt that the marital rape exception is a remnant of British colonial law, that incorporated the then-existing legal doctrine of coverture to argue that if the married couple were merged into ‘one flesh’ after marriage, there was no question of the husband raping the wife as he owned her person and she ceased to have an identity of her own. The UK did away with the marital rape exception through a judgment in 1991, and the government-appointed Justice Verma Committee in India recommended the same in 2013. However, the Parliamentary Standing Committee on Home Affairs rejected the recommendation by opining that if the marital rape exception was removed, that would facilitate husbands to be prosecuted and “the entire family system will be under great stress.” For this reason, the exception was retained. What can a judge do to deliver justice in such a context?
The Gujarat and Karnataka high courts have indicated an interesting possibility. In Nimeshbhai Bharatbhai Desai vs. State of Gujarat (2018), where the wife had filed a criminal complaint against her husband for forcible oral and anal sex, Justice Pardiwala observed that though the wife cannot file a complaint against her husband under Section 375 IPC for marital rape due to the clause providing for marital rape exception, she was free to do so under Section 377 of the IPC (sexual intercourse against the order of nature) as it does not “criminalise against a particular class of people or identity…”. The Karnataka high court in a 2022 case directed the trial court to frame charges against the husband under Section 377 of the IPC, observing that a brutal act of sexual assault on the wife, against her consent, albeit by the husband, cannot but be termed to be a rape.’
Also read: 10 Things We Say When We Speak About Rape
In contrast, the Chhattisgarh high court judgment adopted a literal rule of interpretation to exclude application of Section 375 of the IPC, but it conveniently discarded the same when it read the marital rape exception into Section 377 as well, when no such exception has been explicitly provided for in the said section. It stated that “…an offence under Section 377 IPC between husband and wife has no place, and as such, rape cannot be made out.” In so doing, it adopted a similarly regressive approach of the Uttarakhand high court in 2024.
The double standard in its approach is only matched by its warped reasoning that the perceived contradiction between sections 375 and 377 would need to be resolved by a legal principle than a more recent provision overriding an older provision. 2013 amendments to the provision of rape left the marital rape exception untouched. Both the marital rape exception and section 377 are a product of Lord Macaulay’s penal code, as was originally enacted in 1860, so the judicial reasoning holds no water.
The offence of culpable homicide
Another option before the Chhattisgarh high court was to convict the husband for the offence of culpable homicide (defined in Section 299 of the IPC and 100 of the BNS and punishable under sections 304 of the IPC and 105 of the BNS. This is a provision applied when a person causes death intentionally or with intention of causing such bodily injury that is likely to cause death, or with knowledge that the act would cause death. However the high court did not do so as it observed that the trial court had not recorded any reasons for convicting the husband under the said provision, due to which it described the trial court judgment as “perversity and patent illegality”. Hence it was not in a position to examine if section 304 IPC was attracted in the facts of the case. It had the option of remanding the case to the trial court for such a recording, or it could have examined the evidence on record by its own initiative. It is puzzling that it adopted neither approach and acquitted the husband instead.
Institutional failures and absence of accountability
In the context of a brutal rape and murder of a doctor in Kolkata in August 2024, how institutions fail rape victims came to be highlighted. In the same vein, the narrative in the current judgment indicates institutional failures at various levels. Two important prosecution witnesses had turned hostile, possibly due to the protracted litigation of seven years, or due to threat and intimidation from the husband. If it is the former, it raises questions about prolonged trials leading to denial of justice and accountability. If it was the latter, it undermines the efficacy of the Witness Protection Scheme, which was adopted by the Supreme Court in 2018.
The executive magistrate failed to fully and accurately record the dying declaration, and omitted the doctor’s name in whose presence the same was recorded. The high court treated this grave failure on the part of the magistrate in discharging his duties lightly and failed to admonish him or make him accountable for the same.
If the trial court did not record reasons for why it was convicting the husband under Section 304 of the IPC, that too was a failure, as its reasoned judgment could have increased the possibility of upholding the conviction of the husband by the high court.
On its part, the high court failed to remand the case to the trial court for fully determining applicability of Section 304 of the IPC, or, in the alternative, to examine the husband’s culpability for the offence by itself. It also wrongly applied the law by reading in a marital rape exception into a provision which did not provide for the same. Further, it failed to acknowledge the Supreme Court judgment in Independent Thought vs. Union of India (2017) where it was held that the marital rape exception will not apply if the girl is under 18 years of age. Erroneously, the high court kept referring to 15 years of age as was originally in the IPC. It also wrongly applied the judgment in Navtej Singh Johar vs. Union of India (2018), which had excluded application of Section 377 of the IPC in cases of anal or oral intercourse between consenting adults, to the current case which involved forcible anal intercourse.
The constitutional question remains undecided
In Nimeshbhai (discussed above), the Gujarat high court had opined that treating marital rape cases differently from non-marital rape cases, when the elements that constitute the crime are the same, violate the equal protection clause guaranteed by the Indian constitution. We may recall that the Delhi high court, in RIT Foundation vs. Union of India (2022), delivered a split judgment, with one judge striking down the marital rape exception as unconstitutional, while the other upholding its constitutional validity. Thereafter, the constitutional validity is yet to be determined by the Supreme Court, which has been hearing a batch of petitions on the issue. If the Supreme Court judgment had been delivered in a timely manner, perhaps the Chhattisgarh high court would have been compelled to decide differently, augmenting the possibilities of justice.
Married women and their bodily autonomy
For the Indian women’s movements, deletion of the marital rape exception from the criminal law statute has been a Herculean task. This is exacerbated by the BNS (enacted in 2024) which has completely omitted Section 377, foreclosing the remedy for married women subjected to forcible anal and oral intercourse. The Indian women’s movements have campaigned for decades to ensure that the rape law acknowledges and addresses lived experiences of women. The horrific lived experience of a married woman from Chhattisgarh, the perverse and patently illegal high court judgment and its larger implications for all married women in future indicate that the struggle is far from over.
Systems of accountability are urgently warranted to address institutional failures by the “custodians” of criminal law. Needless to say, women who are at the receiving end of brutal forms of sexual violence, further bear the brunt of such institutional failures, reducing gender justice to nothing more than an illusory notion.
Indian legislators have continued to be reluctant in removing the exception from the criminal law statute. The executive has recently opined that naming marital rape as rape is ‘disproportionate’ and ‘harsh,’ presumably for the husband. Such concerns are clearly outweighed by the citizenship rights of married women. The persistent argument about protecting the institution of marriage at all cost deserves to be called out for being nothing more than fear-mongering.
One must ask – what is the extra risk that the institution will be exposed to by removing the exception, when marital rape is a ground for divorce (subsumed by the concept of cruelty), and legal remedies are available under the Protection of Women from Domestic Violence Act, 2005? A prime issue of concern is whether married women are less deserving of bodily autonomy, dignity, integrity and sexual agency, due to their marital status, as was the case in 18th century England. When fundamental rights to life, dignity and equality are guaranteed by the Indian constitution to all, does a marriage provide a license to a husband to do what he wants with his wife, to the point of a brutal murder? The answer is resoundingly loud and clear.
Saumya Uma is a professor of Law and Director, Centre for Women’s Rights, Jindal Global Law School, O.P. Jindal Global University. She is also a member of the National Alliance for Justice, Accountability and Rights (NAJAR). She researches, writes, and teaches at the intersections of human rights, gender, and the law.
Tharika Sai S Mohan is a final-year law student in the same university with an interest in gender justice.
The opinions expressed in this article are their own.