New Delhi: “Not allowing a spouse for a long time to have sexual intercourse by his or her partner, without sufficient reason, itself amounts (to) mental cruelty to such spouse.”
This was the observation made by the Allahabad High Court in May 2023 while granting divorce to a husband, the petitioner, who filed for divorce from his wife alleging “mental cruelty”, when she refused to live and have sex with him.
Describing the refusal to have sex as an act of mental cruelty within marriage is not new. Courts have time and again (here, here, here and here) ruled that sex is a marital obligation and spouses in a marriage owe a marital duty of sex.
The only qualification that Courts have added was that the refusal to have sex with one’s spouse must be because of a “sufficient reason” or a “valid reason” if it was not to constitute cruelty. There is no clarity or consistency on what constitutes a valid or sufficient reason to have sex, and courts have exercised considerable discretion in determining what that might be.
What is clear, however, is that, unlike other instances, lack of consent alone is not enough to qualify as rape within marriage. Within marriage, refusing sex must satisfy the arbitrary standard of reasonableness.
This raises two issues: first, it creates differential standards of bodily autonomy for married and unmarried women when it comes to sex. Second, framing sex as a marital obligation, the denial of which amounts to mental cruelty, challenges the idea of consent and autonomy within marriage
If sex is a marital duty, how can demanding what is owed constitute rape?
Consequently, even if marital rape is a criminal offence, how is this to be reconciled with the judicial discourse on refusing sex within marriage as amounting to cruelty?
As the constitutionality of the marital rape exception remains pending before the Supreme Court, we argue that simply recognising marital rape as a criminal offence is unlikely to result in a significant change in a married woman’s right to bodily autonomy till the legislature and judiciary simultaneously address how sex is construed as a marital obligation in the domain of family law.
The Discourse on Marital Rape
The normative basis of the marital rape exception is informed by the patriarchal foundations of heterosexual marriages, which vested husbands with property rights over their wives. Various laws around the world have prohibited women from undertaking employment, participating in legal transactions, or applying for legal documents, without the consent of their husbands ( here and here).
This denial of agency also included the denial of the right to refuse consent to sexual intercourse within the institution of heterosexual marriage. Consequently, consent to the matrimonial contract by the wife was deemed to constitute non-revocable consent to the “matrimonial duty” of sex (here and here).
The marital rape exception states that sexual intercourse by a man with his wife, being above the age of 18 years, irrespective of whether such intercourse was consensual, is not a criminal offence. In 2013, the Justice Verma Committee, which was set up to proposes changes to laws in relation to sexual offences, recommended that marital rape be criminalised.
The Criminal Law (Amendment) Act 2013 which amended laws in relation to sexual offences did not reflect this recommendation. One of the justification for retaining the exception was the belief that criminalising marital rape would constitute “excessive interference with the marital relationship”.
In 2022, a division bench of the Delhi High Court in RIT Foundation vs Union of India delivered a split verdict regarding the constitutionality of marital rape. Justice Rajiv Shakdher declared the marital rape exception to be “unconstitutional” and violative of the fundamental rights to equality, liberty and dignity.
“The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances,” said Justice Shakdher.
Justice C Hari Shankar disagreed and held that the marital rape exception did not violate any fundamental rights. “Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law,” he said
“(The marital rape) Exception, far from being unconstitutional, serves a laudatory purpose, and is in pre-eminent public interest, aimed at preservation of the marital institution,” said Justice Shankar.
Criminalising marital rape would amount to creating a new offence without consideration of the social impact and the courts did not have the legitimacy to legislate, Justice Shankar argued.
This is the case now pending before the Supreme Court.
Cruelty, Sex & Marital Fault
As the Supreme Court decides the constitutionality of the marital rape exception, a parallel matter for consideration is how family law jurisprudence understands the role of sex within marriage.
In India, divorce under marriage laws is largely fault-based: That is, unless both partners want a divorce (known as “divorce by mutual consent”), one spouse must allege and prove matrimonial fault caused by their partner.
Matrimonial fault could be a number of things—adultery, desertion, conversion to another religion, or the catch-all category of marital cruelty. As the 2023 Allahabad High Court decision we mentioned previously noted, refusing sex has also been read as constituting mental cruelty.
Thus, within the domain of family laws, sex is often construed as a core marital obligation, the denial of which can lead to the dissolution of marriage or can be construed as the matrimonial fault on part of the spouse refusing to engage in sexual intercourse.
Cruelty is the one of the most frequently used grounds for divorce under marriage laws. Initially, it was interpreted to mean actual physical harm or a reasonable apprehension of harm.
Now, even mental cruelty is recognised as cruelty, constituting actions that cause mental pain and suffering to the extent that parties cannot be expected to live together. This can either be intentional or unintentional—thus opening the floodgates of what could be construed as cruelty.
So, not wearing a mangal sutra has been construed as mental cruelty, as has been forcing a husband to live away from his parents.
The Supreme Court, in laying down an illustrative list in Samar Ghosh vs Jaya Ghosh in 2007, included refusal of sexual intercourse for a considerable period without valid reason, as constituting mental cruelty.
Similarly, in a much cited 1973 decision of the Delhi High Court in Rita Nijhawan vs. Balakishan Nijhawan, the court observed that sex is the very “foundation of marriage” and without it would be impossible for any marriage to continue for long.
A marriage without sex, the Kerala High Court, in Sanjan vs Azara, observed in 2013, is a life of “perpetual torture”. In Praveen Mehta vs Inderjit Mehta, a 2002 Supreme Court case where the wife was suffering from a medical condition but refused to get treated or tested for the same and stayed away from the matrimonial home, the court reasoned that this would cause “anguish and frustration” for the husband by depriving him of a “normal sexual life and cohabitation” within marriage.
These decisions demonstrate the centrality of sex to the institution of marriage under Indian family law.
Reconsidering The Role Of Sex Within Marriage
The framing of sexual intercourse as an obligation within marriage, the refusal of which is justified only on “valid” grounds, in many ways legitimises the marital rape exception.
If refusing sex amounts to refusing marital duty and the performance of marital duty is of utmost importance, then how do we distinguish between instances where consent is freely given versus where it is given out of a sense of obligation?
In other words, as long as refusing sex by is viewed as cruelty and matrimonial fault, there is little space to think of sexual agency within marriage.
It’s worth asking then, is there a right to sex within a marriage? Is there a right to refuse sex within a marriage without it being construed as marital cruelty? If sex is a marital duty, then is sex a legally enforceable marital obligation?
The existing legal discourse on sex and mental cruelty complicates these questions. It is understandable that a husband and wife may wish to separate from each other because of a lack of sexual compatibility.
Yet, courts end up framing refusing sex as “mental cruelty”, as opposed to sexual incompatibility that enables a spouse to dissolve a marriage.
As we said, under marriage laws, spouses can file for divorce only if both mutually consent to it, and in the absence of mutual consent, if spouses can prove fault on part of their partner.
It is, thus, also important that marriage laws be amended to include irretrievable breakdown as a statutory ground for divorce, so a spouse can unilaterally file for divorce on grounds of incompatibility. Spouses and courts can avoid invoking cruelty as the ground for divorce in cases of sexual incompatibility, and that allows a shift in legal narrative on the issue.
Framing refusal of sex as mental cruelty also raises concerns about how marital rape allegations will be viewed by law enforcement and courts. Given the patriarchal thickets that underpin rape trials, even if martial rape were to be criminalised, the discourse around sex and cruelty would leave considerable discretion to judges to decide when refusing consent to sex is valid and when it is not.
Comparative Lessons
Experience of countries that have criminalised marital rape also raise concerns about how the law view’s a woman’s bodily autonomy and agency within marriage.
For instance, both the United Kingdom and South Africa recognise marital rape as a crime. Yet, in both countries, judges pass more lenient sentences in cases of marital rape as compared to rape outside of the marital context.
In a country where refusing sex is deemed as cruelty by the courts, one can argue that recognising marital rape as an offence is unlikely to lead to more sexual autonomy within marriage, until the courts and the legislature reconsider the present legal position that regards sex as a matrimonial duty.
Feminist engagement with the State and the courts reveal the long, difficult journey towards the reform of law on rape. Rape laws have been amended to expand rape beyond non-consensual ‘peno-vaginal’ penetration.
Measures have been taken to reduce the relevance of a rape survivor’s past sexual history in rape trials. Recognising marital rape as a criminal offense is yet another attempt to ensure that women’s bodily integrity and autonomy are respected within marriage.
Criminal Law Reforms Are Not Enough
Ultimately, criminal law reforms, while useful, cannot on their own guarantee freedom and autonomy for women.
Feminists have time and again pointed out how women’s consent to sex is often a product of social coercion as opposed to their free will. The institution of heterosexual marriage, which views sex as a marital duty, contributes to the discourse undermining a woman’s agency when it comes to sex.
Married women and unmarried women will continue to be treated as different classes when it comes to determining whether non-consensual sex amounted to rape or not, the former having the additional burden of proving they had valid reasons to refuse their “matrimonial duty”, as judges have termed it.
If the Supreme Court does criminalise martial rape, it appears evident then that it must be accompanied by other reforms, both legislative and judicial, in the realm of family laws.
(Diksha Sanyal is an assistant professor of legal practice at the Jindal Global Law School, Sonipat and Namrata Mukherjee is a senior resident fellow, Vidhi Centre for Legal Policy, New Delhi.)
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