MATRIMONIAL RAPE—EXEMPTION FROM PROSECUTION FOR HUSBAND—STATE OF THE LAW IN ENGLAND, SCOTLAND AND INDIA
(Published in Criminal Law Journal, Nagpur, 2005 at pages 357 to 368)
I wish to begin this Article with the two most important legal principles found in English and Indian Law.
In Indian Law, the legal principle, in the form of Legislative Provision, is given in the Exception in Sec. 375 of The Indian Penal Code, 1860 (hereinafter referred to as ‘The Code’)
The above Exception reads as follows:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
In England, the principle, in the form of Judicial Dictum, was given by Chief Justice Sir Matthew Hale when he said that “By their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract” in the year 1736.
How far these two ancient legal principles are still relevant in this Age of Modern Marriages will be the main focus of this Article.
STATE OF THE LAW IN ENGLAND
Any aspect of the law relating to Rape is sure to evoke controversy.
The marital rape exception has been described as “outrage to human conscience and reason in the enlightened country in our time”.
We can observe from the English Case Law that the cases relating to the prosecution of a husband for rape upon his wife has come before the Courts when there were irreconcilable matrimonial problems between the spouses leading to their estrangement.
Coming to the position in England, earlier to the Sexual Offences Act, 1956, (Referred to as ‘The SO Act’) Rape is an offence at Common Law. In view of the criticism with the decision in Morgan by the House of Lords, in 1976, the law was codified. Then in 1994, through Sec.142 of the Criminal Justice and Public Order Act, 1994, a new definition of Rape was brought into force by replacing the existing Sec. 1 of the SO Act, 1956.
Now the new Sec. 1(1) provides that “It is an offence for a man to rape a woman or another man.”
The Section further goes on--
(2) A man commits rape if (a) he has sexual intercourse with a person (whether vaginal or carnal) who at the time of the intercourse does not consent to it, and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it”.
In the latest Appeal, in 2004, before The Court of Appeal in England, Sir Hale’s principle was critically examined in R V. C by Lord Justices Judge, Nelson and Mccombe.
The accused Mr.Barry C was married to PN in 1967 and it came to an end in 1971.This incident of Rape took place while they were married. The husband wanted to have sexual intercourse but she did not agree as she was discharged from hospital after unfortunate miscarriage and was very weak.
This is the summary of the incident:
“I said I did not want sex but he started hitting me. I started bleeding. He got me on the floor and raped me. He made me feel sick. Afterwards, he said “If you done as you were told it would not have happened.”
The Rape took place in 1970. By its verdict, the jury accepted her evidence and rejected his denial and convicted him for rape upon his wife.
It is very interesting to observe that neither the trial, nor the verdict challenged. But yet the present Appeal was preferred when the Trial Judge refused to stay the charge of Rape as an abuse of process.
The 1st argument, quite persuasively deployed by Mr. Marson QC, is simply marvelous. He said that in our jurisdiction it was not until the decision of the Court of Appeal in March 1991 in R v R that a man could be convicted of raping his wife during the subsistence of a marriage. Before then, in law a woman was deemed to have given irrevocable consent to sexual intercourse with her husband. This count, alleging rape, would not have been treated as an offence of rape at the time when it was committed, nor prosecuted. Therefore it was an abuse of process.
Lords Judge, Nelson and Mccombe informed that as Mr. Marson has methodically sought to demonstrate the historical basis for his contention and also forcefully reminded more than once that the incident with which this conviction is concerned occurred in 1970, they have taken some time to describe the Historical Development of this issue by a review of all the earlier authorities.
In R. V. Clarence, a husband who was suffering from venereal disease has communicated it to his wife through sexual intercourse. He was convicted for unlawfully inflicting grievous bodily harm contrary to Sec. 20 of Offences against The Person Act, 1861 (Referred to as ‘The OP Act’) and also under Sec.47 for Assault.
Though Clarence was not concerned directly with matrimonial rape and the decision went in his favor by 9 to 4 majority in the Court for the Crown Cases Reserved, with Lord Justices Wills and Stephen writing for the majority, strong Judicial Dicta was available criticizing Hale’s principle by some of the Lords.
Justices Wills said “He was not prepared to assent to the proposition that rape between married persons was impossible”.
Justices Field, with whom Justice Charles agreed, also said that “he should hesitate before the adopts Hale’s principle but he thought that there might be many cases in which wife might be lawfully refuse to have intercourse and in which, if, the husband has it by violence, he might be held guilty of a crime” .
Justice Hawkins, though supportive of Sir Hale, in his declaration that “the intercourse which takes place between husband and wife is not by virtue of any special consent on her part, but is mere submission to an obligation imposed on her by law (and) Consent is immaterial,” he too acknowledged that “ so to endanger her health and cause her to suffer form loathsome disease contracted through his own infidelity cannot, by the most liberal construction of his matrimonial privilege, be said to fall within it……. I cannot conceive it possible seriously to doubt that a wife would be justified in resisting by all means in her power, nay, even to the death, if necessary, the sexual embraces of a husband suffering from such contagious disorder” . (Emphasis supplied)
In R V Jackson, the facts, though not connected with matrimonial rape but with the survival of medieval concepts of the wide general dominion which husbands were entitled to exercise over their wives, were that Mrs Jackson refused to live with her husband even when an order for restitution of conjugal rights was passed in favor of her husband. His response was to capture her and keep her in confinement in order, as he put it, to regain her ‘affection’.
Lord Esher MR, in the above case, was no less forceful than Lord Halsbury LC in his declaration that ‘A series of propositions have been quoted which, if true, make an English wife the slave, the abject slave, of her husband … I do not believe that an English husband has by law any such rights over his wife’s person, as have been suggested.’
In R V. Clarke, because of husband’s continuous cruelty towards his wife, a Separation Order was passed. Under the force of this order, the wife was no longer under an obligation to cohabit with her husband.
Lord Justice Byrne, while agreeing with Hale, refused to drop the charge of rape when he said that “the position, therefore, was that the wife by process of law, namely, by marriage, had given consent to the husband to exercise the marital right during such time as the ordinary relations created by the marriage contract subsisted between them, but by a further process of law, namely, by the Justices’s order, her consent to marital intercourse was revoked.”
Lord Justice Lynskey gave the next decision. The husband was charged with rape on his wife after she left him and also when she filed a petition for divorce. He was also charged with assault causing bodily harm to his wife.
While refusing to quash the charge of assault but of rape, His Lordship accepted Hale’s principle was correct and that Lord Byrne was also correct in his decision.
Lord Lynskey held that “ I cannot see that the fact that a petition for divorce has been presented has any effect in law on the existing marriage. It is not until a decree nisi or a decree absolute has been pronounced that the marriage and its obligations can be said to have been terminated”.
He also held that “if there had been an agreement to separate, particularly if it had contained a non-molestation clause, I should have come to the conclusion that that also revoked the wife’s consent.”
Again Justice Park held in R v. Obrien that a “Decree nisi effectively terminated the marriage and revoked the wife’s implied consent to marital intercourse so that subsequent intercourse by husband without her consent constitute rape”.
In R V. Steel the facts were that shortly after their marriage, husband and the wife had matrimonial differences and the wife left him to live in the quarters allotted to her by the hospital where she worked. In matrimonial proceedings initiated by wife, he gave an undertaking “not to molest her nor to enter her quarters.” But he entered into her quarters and had forced sexual intercourse with her against her will.
He challenged his conviction for rape on the ground that a husband cannot be guilty of rape of his wife since this was the English Law from ancient times.
After a review of the earlier authorities, Lord Lane held that “there has been an undertaking by the husband not to molest his wife. It was equivalent to an injunction. It is given to avoid, amongst other things, the stigma of an injunction. Indeed, whether one considers this as equivalent to the order of court or the equivalent of an agreement between the parties, it does not matter. It may indeed have aspects of both. The effect is to eliminate the wife’s matrimonial consent to intercourse.”
Therefore, Lord Lane, while generally agreeing with Sir Matthew Hale’s principle, finally rejected the argument of the husband on this first point.
His Lordship also said that “a separation agreement, with a non-cohabitation clause, a decree of judicial separation, a separation order in the Court and an injunction restraining the husband from intercourse with her” are all obvious cases in which the wife’s consent would be successfully revoked” as examples where wife is not willing to have sex with the husband.
With reference to “foreplay” earlier to normal intercourse with a wife, there was another line of authority when it was held in R V. Kawalski that in general “acts which would ordinarily be indecent but which are preliminary to normal intercourse are deemed to be covered by the wife’s implied consent to the latter, but certain acts such as fellatio, are not to be so deemed.” Husband was convicted not for rape but for causing bodily harm with indecent assault upon his wife.
On a slightly different set of circumstances in R.V. Roberts, where there had been a non-molestation order for two months, that has expired, and had been immediately followed by a formal deed of separation without an express non-cohabitation clause, Lord O’Connor held that “the combination of these factors also was one of the those situations which had by operation of law coupled with an agreement between the parties effectively put an end to the wife’s fictional consent”.
But His Lordship agreed with Hale when he put the basic rule as “The status of marriage involves that the woman have given her consent to her husband having intercourse with her during the subsistence of marriage. She cannot unilaterally withdraw it”
But completely contrary decisions were given in the following two cases.
In R v. Sharples, Lord Fawcus, after observing that “ husband could not be convicted for rape upon his wife in circumstances where there was in force a family protection order in her favor not to use or threaten to use violence against the person of the wife”, held that “it cannot be inferred that by obtaining the order in these terms the wife had withdrawn her consent to sexual intercourse”.
Next in R v. J, a husband was charged with rape of his wife, from whom he was living apart at the time.
While quashing the charge of rape but not of indecent assault upon his wife, Lord Rougier held that though a wife cannot by her unilateral act withdraw her consent, her husband by his unilateral conduct could release her from her obligation …..”.
Lord Rougier also held that “the effect of Sec.1 (1)(a) of the Sexual Offences (Amendment) Act, 1976 was that the marital exemption embodied in Hale’s principle was preserved, subject to those exceptions established by cases decided before the Act was passed.”
He also held that “the word ‘unlawful’ in Sec. 1 (1) (a) of the 1976 Act was to be understood as ‘illicit’ i.e., outside the bond of marriage.” by relying on the decision in Chapman, a case brought under Sec.19 of The SO 1956 Act.
Then in R v. S the wife had obtained a family protection order identical to that given in R. v. Sharples.
Refusing to follow Lord Fawcus, Lord Swinton Thomas held that “the existence of the family protection order created an exception to the marital exemption.”
Following Lord Rougier, Thomas held “that subject to the established Exceptions, the marital exemption to rape was preserved in the 1976 Act.
But in one aspect, Lord Thomas differed with Lord Rougier, when he gave his opinion that “it remained open to Judges to define further exceptions”.
The case of R v R was finally brought before Lords Keith, Brandon, Griffiths, Ackner and Lowry in the House of Lords in the same year 1991 when the Court of Appeal delivered a Reserved Decision but granted the Certificate on the question “Is husband criminally liable for rape of his wife” of great public importance, after dismissing the husband’s appeal,
In the Court of Appeal, Lord Lane wrote the main ruling with Lords P Stephen Brown, Watkins, Neill, Russell in agreement.
The spouses were married in 1984. She left him to live with her parents because of some matrimonial problems in 1989 and left a note for him to tell that she was moving for divorce. But no divorce proceedings were initiated. On 12-11-89, husband by force entered into her parent’s house, when they were out, and made attempts to have sex with her against her will with assault upon her.
Lord Justice Keith wrote the main decision with no dissent from the other Lords.
Lord Keith of Kinkel pointed out ‘that part of Hale’s proposition which asserts that a wife cannot retract to the consent to sexual intercourse which she gives on marriage has been departed from in a series of decided cases. On grounds of principle there is no good reason why the whole proposition should not be held inapplicable in modern times.’
Their lordships in R V. R held that the word ‘Unlawful’ in Rape Law is a ‘mere surplusage,’ after quoting with approval the dictum of the House of Lords in Mc Monagle V Westminister City Council wherein their Lordships held that the words ‘which are not unlawful’ found in Para 3 of Sc.3 to the Local Government (Miscellaneous Provisions) Act, 1982 should be treated as surplusage and as having been introduced by incompetent draftsmanship.
Lord Keith expressly agreed with Lord Lane’s observation in the Court of Appeal in the same case that “a new offence was not being created, but rather ‘it is the removal of a common law fiction which has become anachronistic and offensive …”
LAW IN SCOTLAND
Then The House of Lords turned their attention to the Scottish Law on Matrimonial Rape by quoting 3 decisions
In HM. Advocate v. Duffy and in HM. Advocate v. Paxton it had been held by the Justices that “the exemption did not apply where the parties to marriage were not cohabiting. The High Court held that the exemption if it had ever been part of the Law of Scotland, was no longer so.”
Again in 1989, Lord Emslie, the Lord Justice General, in S v. HM.Advocate held that “a wife is not obliged to obey her husband in all things nor to suffer excessive demands on the part of her husband. Nowadays it cannot be seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances. It cannot be affirmed nowadays, that whatever the position may have been in earlier centuries that it is an incident of modern marriage that a wife consents to intercourse in all circumstances including sexual intercourse obtained only by force.”
Finally, it was held that the charge 2(b) (i.e., Rape) is a relevant charge against the appellant (husband) to go to trial.
Lord Emslie also held that ‘the idea that a wife by marriage consents in advance to her husband having sexual intercourse with her whatever her state of health or however proper her objections (if that is what Hale CJ meant) is no longer acceptable. It can never have been other than a fiction, and fiction is a poor basis for the criminal law … We take the view that the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with the victim.’
In Scotland, Lord Emslie observed, that rape had always been essentially a crime of violence and aggravated assault, and doubted whether it was ever contemplated by the common law that a wife ‘consented to intercourse against her will and obtained by force.’
THE DECISIONS IN EUROPEAN COURT OF HUMAN RIGHTS ON MATRIMONIAL RAPE
Thereafter the husband in R V. R challenged his conviction before the European Court of Human Rights (Referred to as ‘The EC’ in this article).
For protecting his client in R V.C, Mr.Marson submitted his second argument that the trial is in contravention of Art. 7(1) of the European Convention of Human Rights 1950. ‘incorporating the common law presumption against the retrospective application of penal statutes’.??????
Article 7(1) declares:
‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’
But Mr Marson immediately recognized the problem created for him by the decision of the EC in SW v UK where, notwithstanding the Terms of Art. 7 of the Convention, the decision in R v R (that is the same appellant described in the EC as CR) was considered and approved.
In SW v UK the EC was considering complaints that there had been a violation of Art. 7(1) because both SW and CR had been found guilty of raping, or attempting to rape their wives, although when the relevant acts took place, the husbands would have been immune from prosecution. Towards the end of the judgment, the EC observed:
‘The essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords … cannot be said to be at variance with the object and purpose of Article 7 of the Convention, namely to ensure that no-one should be subjected to arbitrary prosecution conviction or punishment. What is more, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilized concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.’
Their Lordships in The EC said that they are highlighting the reference to the way in which ‘any civilized country’ should approach these problems. Then, the EC held that “This concept is re-echoed in Art. 7(2) of the Convention providing a specific and critical exception to the broad ambit of Art 7(1)”.
Article 7(2) declares—
“This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.”
Accordingly, looking at art 7(1) and (2) together, and examining the entire purpose of the convention, The EC held that the wife was entitled to protection from inhuman or degrading treatment, and indeed from the ‘destruction of any of the rights and freedoms protected by the Convention’. Therefore Article 7(2) provides ‘ample justification for a husband’s trial and punishment for the rape of his wife, according to the general principles recognized by civilized nations’.
In his third line of argument Mr. Marson suggested that the reasoning (of the EC) depended on the fact that by 1989 an individual husband who forced his wife to have sexual intercourse with him against her will would have been able to anticipate with ‘reasonable certainty’ that such actions would be regarded as criminal. That would not have been so in 1970, when this appellant raped his wife.
As a further argument, Mr.Marson suggested that ‘one way of testing the issue of forseeability’ identified in the European Court of Human Rights’ decision was to consider what his client would have been told if he had sought legal advice in about 1970. His solicitors would no doubt have warned him that it was morally wrong to force himself on his wife, and that he should not do so, but if they were to give him conscientious advice about the true state of the law, they would have to say that if he raped his wife he would not be committing a criminal offence. This represented the common understanding of the legal position.
In rejecting the above submissions, Lord Justices Judge, McCombe and Nelson have said that they “do not agree that this is anything like a complete statement of appropriate legal advice in 1970. The solicitor would have started by pointing out to this client that to rape his wife would be barbaric, and that he would not condone it. He would then have told his client that the courts had developed and could be expected to continue to develop exceptions to the supposed rule of irrevocable consent, and that if ever the issue were considered in this court, the supposed immunity of a husband from a successful prosecution for rape of his wife might be recognized for what it was, a legal fiction. On this view therefore he would have been told that he could not rape his wife with complete impunity.”
Finally in R V. C, The Court of Appeal held that “consistently with the outcome in R v R, it is now clearly established by the unreported decision of this court in R v L (Graham) that a man may properly be convicted of raping his wife when the incident occurred before the decision of R v R. The reasoning of the European Court of Human Rights together with our analysis of the supposed immunity, and a true understanding of the limitations on its ambit before March 1991, lead us to conclude that the distinction Mr. Marson sought to base on the dates when the different rapes occurred in SW v UK, and again in R v L (Graham), and the present case is not sustained”.
The exceptions demonstrated that Hale’s unqualified statement that a wife could not retract her consent to sexual intercourse was wrong. At the time perhaps their cumulative significance was not fully appreciated, because in each of the cases in question, the exceptional circumstances enabled justice to be done.
Therefore after a review of all the earlier authorities quoted above, The House of Lords declared that a husband was ‘criminally liable for raping his wife’ by dismissing R’s Appeal.
Since that decision in R. V. R in 1991 the Marital Exemption in case of rape by husband was completely abolished in English Law.
Therefore, in R V. C, their Lordships have held that the prosecution of this appellant for rape did not infringe his rights under the convention.
Now, I would like to refer to the cases relating to prosecution of husband as ‘an abettor for rape upon his wife’.
In R.v. Cogan & Leak , a case of shocking facts, Leak forced his wife to have sex with C. C was charged with rape and L was charged as an abettor of rape upon his wife. Fortunately C was acquitted when it was established that he did not know that L’s wife was not consenting to the intercourse. The husband was convicted.
Dismissing husband’s appeal, Lord Lawton, with Lords James and Bristow in agreement, held that “rape took place because L wanted this to happen and taken action to see that it did by persuading C to use his body as the instrument for the necessary physical act. It is irrelevant that the man whom Leak had procured to do the physical act himself did not intend to have sexual intercourse with the wife without her consent.
It was also held that “in this case the wife had been raped. C had intercourse with her without her consent. The fact that C was innocent of rape because he believed that she was consenting does not affect the position that she was raped.”
In an another equally shocking case, it was held that “a husband may be guilty as a principal in 2nd degree to a rape on his wife by assisting another person to commit rape on her, for though in marriage the wife has given up her body to the husband, she is not by him to be prostituted to another”.
The Exception to Sec.375 of The Code tells us that a husband cannot be prosecuted at all for rape upon his wife during their married life if she is not below 15 years of age despite the fact that she was forced to have sexual intercourse with him against her will. Under this exception, her consent is completely dispensed with depending on her age.
The ancient Hale’s principle, gone with the wind in England, appears to be in full play in India as husband can take his wife’s consent for granted even when she is unwilling to have sex with him when she is, at or above, 15 years of age.
To be successful in avoiding prosecution for rape on wife, the husband has to ‘prove a valid or at least a voidable marriage’ and then he has to ‘establish that his wife is or is above 15 years of age’.
But a husband can always be prosecuted for rape on his wife when she is below 15 years of age. Here her consent is totally irrelevant.
Through a critical analysis, it can be pointed out that in case of a marriage under The Hindu Marriage Act, 1955 (Referred to as The HM Act) which happened to be ‘Voibable’ prosecution of husband for rape on his wife may not be possible as such marriage continues to be valid unless annulled by the Court at the request of the wife when her consent is not properly obtained. Otherwise her age must be below 15 yeas.
For instance, when the girl’s consent to a marriage is obtained under any of the vitiating factors making it voidable and when she is also not interested in marital life but did not come before the Court to formally cancel it, the husband, without any fear of prosecution for rape, may force her to have sexual intercourse with him against her will.
There is one more point. Suppose the wife gives a notice of her intention to proceed for annulment of her marriage or submits a petition in the Court, Can husband be prosecuted for rape on her during this period?
Then turning the discussion to ‘Void Marriages’ under The HM Act, on a first view, it can be submitted that since a formal Decree of Nullity is not essential since the marriage is Nullity from the beginning, the supposed husband can always be prosecuted for rape on her. He cannot set up the plea that he did not know that his marriage is not valid as ‘ignorance of law’ is not an excuse for him.
Then coming to the Petition submitted for Restitution of Conjugal Rights under The HM Act, I humbly but firmly submit that by a similar analogy a husband can be prosecuted and punished for rape upon his wife when the court has refused to grant the Decree in his favor and he had sexual intercourse with her against her will.
This Exception has an exception when, for the first time in India, a new Legislative Provision was brought into force in Sec.376A of The Code.
Complete text of Sec.376 A is as follows:
“Whoever has sexual intercourse with his own wife, who is living separately from her husband under a decree of separation or under any custom or usage, without her consent shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine”.
This section informs us that unless the spouses are living apart either under a decree of separation or under any custom or usage applicable to their caste or community, the husband cannot be prosecuted for rape on his wife even when he had intercourse with her against her will.
Naturally, under Sec. 376A, greatest importance was given to her consent in the matter of sexual intercourse with her husband without any reference to her age as in the previous
Sec.376A speaks only about the Decree of Separation.
This provision is silent when the wife is living separately from her husband on the strength of a mutual agreement for the purposes of Sec.125(4) of the Code of Criminal Procedure, 1973 and the husband has committed rape upon her.
It is also not clear whether Sec, 376A applies against the husband during the period ‘when the spouses are living separately for a minimum period of 1year or more prior to the presentation of a Petition for Divorce by Mutual Consent’ under the HM Act.
Then a wife may be living separately from her husband under circumstances given in Sec. 18(2) of The Hindu Adoptions and Maintainance Act, 1956. Can a husband be prosecuted for rape upon his wife?
Are we ready to prosecute a husband for Matrimonial Rape in above situations by extending the interpretation of the word ‘separation’, without looking at the preceding word ‘decree’ found in the section?
Sec.376 prescribes punishment for Rape.
First, when a husband is found guilty of matrimonial rape, when his wife is below 12 years of age, he shall be punished with imprisonment for a ‘mandatory minimum period’ of 7 years, as in ordinary cases of rape since no special dispensation is given to husband.
In most deserving cases, the punishment may even extend to imprisonment for life or for 10 years.
But the Proviso to Sec.376 declares that the court may, for special and adequate reasons given in writing, impose a sentence of imprisonment for less than 7 years upon a convicted person for rape of a woman other than his wife.
In the circumstances discussed above, can a husband, also, take advantage of this Proviso for making a request in imposing a sentence of imprisonment for less than 7 years on special and adequate reasons when the victim happens to be his wife?
Second, if a husband is found guilty of rape on his wife who is between 12 to 15 years of age, he can be punished with imprisonment, which may extend to 2 years or with fine or with both.
Here, the application of the above Proviso may be ruled out as The Court is already having a wide discretion, to extend or not to extend, the punishment to 2 years or simply impose a fine on husband.
Only 3 decisions were referred to in Text Books in India on Matrimonial Rape.
Then coming to the Case Law in India, the reference made to the decision in Karthik Kundu decided by the Cal. HC in most of the Text Books on Criminal Law, under the Exception to Sec.375 of the Code, is misleading, since this ruling by Lords Justices P.B.Mukherjee and A.K. Das turned, not upon Matrimonial Rape by the husband, but ‘on the deception of the appellant leading to a belief being created in the mind of the woman to think that she is married to him thereby resulting in her consent to have sex with him under such belief’, rightly “ending in convicting the appellant for an offence under Sec.493 of the Code by emphatically rejecting the argument of Kartick that there was distinction between a minor and major girl with reference to the application of that section.”
Similarly, the citation of the decision in Queen Empress V. Huree Mohun Mythee in some of the Text Books is also not relevant as the charge of rape was not brought against Mohan when he was found to be responsible for the death of his child wife of 11 years when he had sexual intercourse since “the law declares that rape does not apply as between husband and wife after the age of 10 years it proved fatal for her”.
In his summing up to the Members of Jury about the facts and evidence in the case, Lord Wilson pointed out that “it by no means follows that the law regards a wife over ten years of age as a thing made over to be the absolute property of her husband or a as person outside the protection of the criminal law. That of course cannot be supposed. Under no system of law with which the Courts have had to do in this country whether Hindu or Mohammedan or that frame under British rule, has it ever been the law that a husband has the absolute right of to enjoy the person of his wife without regard to the question of safety to her, as for instance if the circumstances be such that it is certain death to her, or that it is probably dangerous to her life.”
Ultimately, Mohan was convicted for ‘causing grievous hurt by doing an act so rashly or negligently as to endanger to human life or the personal safety’ under Sec. 338 of The Code.
Next in the Bombay High Court decision, (Unreported) a husband, suspecting the fidelity of his wife, went in search of her with his 9 companions and found her in the company of her lover. While the husband was looking on, these 9 companions raped her. All the 9 persons were held guilty of rape upon her.
PROCEDURE LAW FOR BRINGING IN THE PROSECUTION AGAINST THE HUSBAND
Sec. 198(6) of the Code of Criminal Procedure, 1973 (Referred to as ‘The 1973 Code’) declares that courts are prohibited from taking cognizance of the offence of Matrimonial Rape falling under Exception to Sec. 375 of The Code unless the proceedings were brought against the husband within one year from the date of the commission of the offence.
Though this section is silent with reference to Sec.376A of The Code, by a similar analogy, I submit the same rule applies in this regard.
Then with regard to the question as to who can file the complaint, when we read Sec. 198 in total, it becomes clear that in the case of Child-wife below 15 years of age, her next friend or some other person may given the complaint on her behalf. Whether or not ‘Leave of the Court’ is necessary for filing the complaint is not clear.
One point is sure. The wife, being the aggrieved person, can always file the complaint if she is willing to do so. None can stop her.
Coming to Sec.376A, as age of a wife is not at all relevant, it is clear that when she was of the age of majority none except she can file the complaint against her husband. Otherwise her next friend or some other person may file the complaint.
Since Matrimonial Rape falling under the Exception to Secs.375 and 376 were declared to be Non-Cognizable offences under The 1973 Code, The Police have no powers to take up investigation.
Towards the end of this article, I would like to suggest the following Amendments to The Code.
1. After the words ‘under a decree of separation,’ the following provisions shall be put in Sec.376A of The Code.
“Or when wife is living separately from her husband under a mutual agreement executed under Sec.125 (4) of The 1973 Code or living separately prior to the filing of a Petition for Divorce by Mutual Consent or living separately for reasons given in Sec. 18 (2) of the Hindu Adoptions and Maintainance Act, 1956 or living separately when her husband fails to obtain a Decree for Restitution of Conjugal Rights”.
2. In the Exception to Sec.375 of The Code, I want to suggest that the age of wife shall be increased from ‘15 years’ to ‘18 years’.
Alternatively, if our Society is ready to completely remove the “martial exemption” in favor of husband, the Exception to Sec. 375 of The Code shall be deleted by allowing the Courts to develop the Exceptions, as it had developed in England starting with R V. Clarke to R.V.C., to the principle that ‘a husband has the implied consent of his wife at all times in having sexual intercourse with her’