When the Chhattisgarh high court discharged a man accused of sexual assault of his wife, the judge went strictly by the book – yet again highlighting a disturbing flaw in India’s rape law that has survived scrutiny since 1860.
Exception 2 in Section 375 IPC grants immunity to a husband for sex with an unwilling wife. In 1860, the exemption may have been based on the premise that a woman upon marriage became her husband’s “property”.
That it continues today is outrageous. In 2013, the Justice JS Verma committee recommended its removal, saying relationship with a victim cannot justify sexual assault.
The Supreme Court and HCs have called out the flaw, not infrequently prioritising a woman’s agency over her body, choosing to sidestep the archaic premise that a husband “owns” a wife. Earlier this month, Kerala HC observed: “Spouses in marriage are treated as equal partners.
Treating wife’s body as something owing to husband and committing sexual act against her will is marital rape.” Legal systems are works in progress, amended continually in keeping with the times.
SC and HCs have done stellar work in reading down laws that have no place in the modern society India strives to be – such as decriminalising adultery or homosexuality.
The judiciary should not wait for the legislature to bring about the amendment that will remove the damaging immunity to sexual abusers, but should simply outlaw the exemption.