In the matter of Joseph Shine vs Union of India [WP (Crl) 194 of 2017], the Supreme Court decriminalized the offence of adultery by holding Section 497 of the Indian Penal Code, 1860, along with a part of Section 198 of Code of Civil Procedure, 1973, as unconstitutional. Apart from tearing down an archaic, patriarchal and arbitrary law, the Supreme Court also laid the pathway for the eventual criminalization of marital rape – by virtue of this judgement. Section 497 and Section 375 Exception 2 (which states that a husband cannot be held liable for a rape of his wife), share the same ancient inherently flawed logic which the Supreme Court expressly ruled against in the case of Joseph Shine.

Examination of Section 497 of the Indian Penal Code vis-a-vis Section 375, Exception 2:

Section 497 of the Indian Penal Code stated:

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.

A simple reading of this makes it adequately clear that women were never being held liable under this section. Only men who were engaging in sexual relationships with married women were being criminalized. Even married men, who were engaging in a sexual relationship with unmarried women, were not criminalized. To understand why the law only criminalized acts of men who engaged in sexual relationships with married women, we need to look to the origin of rape and sexual offences.

The word rape originated from the Latin word rapere which meant “to snatch, to grab, to carry off”. In Roman law, raptus (or raptio) primarily meant kidnapping or abduction; sexual violation was a non-issue. In the ancient world, sexual violation of women wasn’t the actual bodily rights issue, as women were treated like “property or objects” belonging to their fathers and then husbands, and who could be “stolen or carried away”. And that is how Common Law has historically perceived women: as objects.

This is why under the adultery law, women were not held liable – as they were considered goods/property with no individuality of their own. And this is also why married men entering into sexual relationships with unmarried women was not adultery – as those unmarried women were not considered a property of another man yet.

By extension of the same flawed logic, men were protected against claims of rape from their own wives. Since the Law back then considered the wives to be owned by their husbands, the wives could not protest of an offence against their husbands.

What Joseph Shrine stated:

The principle of considering women as property of the man she is married to was torn down in the recent Joseph Shrine judgment. Chief Justice Mishra clearly stated that any provision of law affecting individual dignity and equality of women invited the wrath of the Constitution. He emphasized that the husband was not the master of the wife and that, the legal sovereignty of one sex over the other sex was wrong. Justice Chandrachud further stated that autonomy was intrinsic in a dignified human existence, and that respect for sexual autonomy had to be respected. He also stated that marriage did not act as a ceiling of autonomy and that women did not become a subordinate in married life.

Pending Marital Rape Litigation:

A Public Interest Litigation for the criminalization of marital rape, filed by the RTI Foundation, is still pending before the Delhi High Court. The opinion of the Supreme Court in the Joseph Shrine generates hope that the Delhi High Court will criminalize the act of marital rape. While it is a given that even if marital rape is criminalized by the Delhi High Court, the matter would be eventually appealed to the Supreme Court, the Joseph Shrine judgment has finally laid the foundation for eventually tearing down Exception 2 of Section 375.

To conclude, it is perhaps ironic to realize that Indian men have been granted divorce by the Supreme Court on the ground that their wife “demanded too much sex”. That is to say, the Indian Courts have recognized the right of a man to say no to sex, but not the right of a woman to say no.

Published with the permission from Arguendo