The marital rape exception, though it finds its social prevalence in the Indian society from time immemorial, is legally a reminiscent of English common law. The marital rape is exempted from the scope of the offence of rape by the exemption clause under S.375 of Indian Penal Code (IPC). This article aims to analyse the validity of the said exception various methods of interpretation. That is, it aims to determine whether the exception should be nullified as to penalize the marital rape by bringing it under the scope of rape under S.375 from a Textualist, Intentionalist and Purposivist interpretation.
As it’s important to understand the essence of each approach to better comprehend the analysis, the article is structured to firstly explore the foundation principles of each approach and subsequently utilize the different schools of interpretation while analyzing the marital rape exception.
TEXTUALIST APPROACH
The originalist/textualist approach expects the meaning of the legislative work to be derived from the plain text (i.e., the Literal rule). The sources are limited to the objective and codified sources such as the legislative text and precedents1. Textualists justifies this approach based on a few following assumptions2.
- The plain text of the work has determinable meaning at any point of time.
- The intended meaning is exhausted by the text. Thus, there is no need to look beyond the text.
- Any interpretation beyond the text shall not be interpretation but usurpation.
To put it into context, textualist judges are strong proponents of the doctrine of separation of powers. They believe that the power of law-making/legislation is vested upon the legislators by the populace. According to textualists, the burden of making morally relevant and socially acceptable laws is solely on the legislators. Judges are actors meant merely to interpret the law as it is, while using least amount of subjective discretion, even if the result of the interpretation is immoral. Arie Rosen describes textual approach as a ‘correctness independent approach’3 for the said reasons. Thus, they believe any interpretation that gives a new contextual meaning beyond what the plain text conveys, shall not be interpretation but usurpation.
But, to allow only the least level of discretion to the judges in interpreting, the law ought to have clear and determinable meaning derivable from the plain text. Thus, it can be said that the third assumption is built on first two assumptions. Textualists perceive the law as bargain/settlement struck between groups with competing interests. They believe that the meaning intended to be conveyed should strictly be interpreted within the bounds of the text and not beyond.
Applying the textualist approach it’s reasonable to interpret the exemption provision under the IPC to be valid under law as the it’s clearly worded. But this interpretation would be myopic way of perceiving the provision. One of the important subsidiary rules during the interpretation of a statues is that the statute ought to be read as a whole. This way it’s important to note, even-though the relevant exemption provision is clear and unambiguous, it is in total contravention with essence of the entire section of rape. Further, the constitution requires courts to interpret laws within the constitutional framework. For example, Article 13 mandates and empowers the courts to strike down any provision (enacted pre/post-constitution) that’s in violation of the fundamental rights. Unjustified denial of a woman’s right to sexual and bodily autonomy (right to consent) and modesty, on grounds of marriage as this shall be in direct violation with the principles embodied in Articles 14, 19 & 21. Thus, a textualist judge in India, reading statutes as a whole along article 14 jurisprudence, shall strike down the provision.
INTENTIONALIST APPROACH
Intentionalist approach is a step further from the textualist approach. Intentionalism tries to perceive meaning of the law through the prism of the intention of the legislature if the mere text is not sufficient (i.e., the golden rule). The sources considered during this exercise include legislative text, tradition, history and precedents4. The nature of the examination shall be ‘archeological/historical’ rather than a ‘teleological’. They study evidence and historical records such as parliamentary debates, law commission reports, treaties from the time that the legislation was drafted to see the intention of the legislature. And this intention in-turn is used to determine the meaning of the provision rather than prospectively thinking through the lines of the consequences or the impact that the interpretation shall have on the society.
Given that the text examined here is a legislative text, the legislator is not a person, but a body of elected representatives and they necessarily might not have a collective intent in enacting the legislation. The judge upon examining the available historic documents narrows down an intention to the act. Textualist critique - the intention that the judge bestows upon the legislation is an artificial creature and is an instance of usurpation of legislative power. This artificial endowment of a collective intention though based on codified documents, gives a little scope of judicial discretion making this approach fall somewhere between correctness oriented and independent approach5.
Historical records that’s relevant to determine intention behind marital rape exception are as follows:
- Hale’s History of Pleas of the Crown –
- Indian Penal Code, 1960 – draft by Lord Macaulay rationalized the doctrine of coverture which states a woman has no individual legal identity after marriage8 through provision like S.497, S.375 Exception 2 etc.
- Indian Constitution – Articles 13, 14, 19 & 21 – Parliamentary debates read along with the landmark cases which clarified the scope of the Article 14 through the test of Intelligible Differentia and Rational Nexus and the golden triangle doctrine.
But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract.6
The rationale suggested was that the wife was considered to have provided an ongoing and non-revocable consent to sexual intercourse through the contract of marriage and thus the husband can enforce his conjugal right upon his wife without committing an offence7.
An Intentionalist judge upon reading all the relevant documents, is likely to give primacy to intention of the constitution makers and strike down the discriminatory exception drafted by the pre-constitutional legislators. Thus he/she shall strike down the exemption provision.
PURPOSIVE APPROACH
Purposive approach interprets the meaning of the texts; in line with the purpose of the legislation; or negatively put as a solution to the mischief that the legislation was trying to address (i.e., the mischief rule). Purposivist argue - given that it’s not humanly possible to foresee all the potential ambiguities or disputes in a legislation9, there is a legitimate need for the judges to then and there interpret the law in a manner that enables it to fulfil its purpose of equitably resolving the present and prospective disputes.
This approach is different from the Intentionalist approach as the sources are not limited to the past sources but can extend to teleological/prospective sources. Depending on the extent of importance given to the legislative decisions this approach splits into two school of thought – Broad Purposive (Pragmatist), Narrow Purposive approach. To elaborate, unlike previous approaches, broad purposivism does not advocate pursuing legislative decisions/intentions as an objective in itself but recommends to merely use them as tools to reach a morally correct solution. This means, its objective is to reach a morally correct solution that makes the present and prospective society better, and any source from past (history, tradition), present (text, precedent) or future (purpose, consequence) that yields the said solution shall be used. On the other hand, narrow purposivism gives primacy to the legislative decisions and intentions but demands ‘necessary flexibility’ to use prospective sources if the legislative decisions/intentions yield a socially absurd or irrelevant interpretation. Either way the purposivist approach provides the widest amount of discretion to the judges for interpretation.
In the context of marital rape, a purposivist judge is likely to state that the intention of the past legislators was on the lines with the patriarchal norms of the familial structure and the same is reflected through the regressive wording exemption provision. But such patriarchal notions are irrelevant and absurd in the present society. This can be inferred from -
- R v. R (1991) JPN 752 – Landmark ruling that overruled Marital rape in England.
- Joseph shine v. Union of India10 - clarified that the doctrine of coverture is in violation of fundamental rights and was not intended to be to strike down offence of adultery in S.497.
- X v. Health and Family Welfare Department11 - apex court decision which declared - “Sexual assault” or “rape” under Medical Termination act includes Marital rape.
Factually, the provision is regressive. Legally, the exception provision is in contravention to the essential schema of the rape provision. Further its constitutionally violative of the fundamental rights of every married woman for the reasons explained above. Thus, considering the compelling reasons and the legislative incoherence/conflict (fundamental right violation), the exemption provision is to be struck down.
1 “U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009)” (YouTubeJanuary 24, 2019)
2 Rosen A, “Statutory Interpretation and the Many Virtues of Legislation - Jstor.org” (JSTOR)
3 Ibid 2
4 Ibid 1
5 Hale, History of the Pleas of the Crown, 1st ed. (1736), vol. 1, ch. 58, p. 629
6 “A Guide to Marital Rape Law” (A Guide to Marital Rape Law - Noble Solicitors)
7 Joseph Shine vs UOI : (2019) 3 SCC 39, AIR 2018 SC 4898
8 Stumpff AM, “The Law Is a Fractal: The Attempt to Anticipate Everything” (lawecommons2013)
9 2018 SC 1676
10 2022 SCC OnLine SC 1321
11 2022 SCC OnLine SC 1321