Updated: August 31, 2017 9:39 am
India’s rape laws, which make an exception for cases where the perpetrator is the husband, has its origins in the common law. Section 375 of the Indian Penal Code, which defines rapes, makes an exception for marital rape by stating, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” On Monday, the central government had filed an affidavit in Delhi High Court, arguing that marital rape should not be criminalised, on the ground that it may “destabilise the institution of marriage”.
The grounds for “marital immunity” for rape prosecution were laid by Chief Justice Sir Matthew Hale in The History of the Pleas of the Crown, published in 1736, 60 years after his death. He wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” This ‘Implied Consent Theory of Sir Hale’ found its way into the legal system of all former British colonies that adopted the common law system.
Australia, under the impact of the second wave of feminism in the seventies, was the first common law country to pass reforms in 1976 that made rape in marriage a criminal offence. In the two decades before that, several Scandinavian countries and countries in the Communist bloc passed laws criminalising spousal rape including Sweden, Norway, Denmark, and the former Soviet Union and Czechoslovakia. Poland in 1932 was the first to have a law explicitly making it a criminal offence. Since the 1980s, many common law countries have legislatively abolished the marital rape immunity. These…