16. The Immutability of the Marital Exemption Clause in the Indian Rape Law

Criminal Law Reform is a complex phenomenon, particularly where the reform relates to the law of rape, which is besieged with multiple controversies. However, the present paper proposes to examine the controversy relating to ‘marital exemption’ that appears to have acquired not only an immutable status but also become the sine qua non of the Indian Rape Law itself. The examination proceeds in the historical, social and political contexts reflected in the legislative, judicial and policy level responses to marital exemption. Going to the contentions marital rape provision under section 375 Exception 2 of the Penal Code, one finds a strange concurrence of ideas between the pre-colonial notions of rape and the strict colonial notions of the offence which was spelled in the sections 359-60 of the Draft Penal Code that read: ‘Sexual intercourse by a man with his own wife is in no case rape’. In the Western society, in the past century, significant changes in the rape law have been effected, including the abolition of inequitious marital exemption clause. To bring about a change in the law, the judiciary and the legislature played a key role. The Indian Rape Law also has witnessed several changes in the rape law, particularly in 1983 and 2013, but the marital rape exemption clause has remained intact. The main reason for the ‘no change line’ on marital exemption is the patriarchal minds of the policy planners and the governments that are patently reflected in the two affidavits filed before the Delhi High Court and the Supreme Court. Such a mindset in turn is nurtured and sustained primarily by the culture and the religion of the majority community. A breakthrough in the marital exemption log-jam is possible either through a Supreme Court ruling striking down the provision on constitutional grounds or the Parliament undertaking a revision of the rape law to bring it in consonance with the dignity and equality of women.