Human Rights

How England, Scotland, Australia, and the United States removed the marital exception to rape

PraptiPatelOn April 29,the Union Minister of State for Home Affairs announced in response to a question in Parliament that the government had no plans to criminalise marital rape. Illiteracy, poverty, societal customs, religious beliefs, and the general mindset of the society which treats marriage as a sacrament were put forward as reasons to not bring in any such amendment.

England and Scotland


Matthew Hale (1609-1676)

The common law on the matter of the rape of a wife by her husband followed the rule that a wife became her husband’s physical and sexual property as part of the marriage contract. A man was therefore exempt from prosecution for the rape of a woman to whom he is married to. The infamous statement of the seventeenth century judge Matthew Hale, that “A 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 up herself in this kind unto her husband, which she cannot retract” has been followed in common law jurisdictions across the world.

The protection from prosecution given to spousal rape was also recognised in Scottish criminal law. The Scottish High Court of Justiciary however, modified this view in the 1989 case of S. v. H.M. Advocate and removed the marital immunity from rape. The same view was taken in England by Appellate Committee of the House of Lords in R. v. R in 1991.


In 1976, with the Criminal Law Consolidation Act Amendment Act 1976, South Australia became the first jurisdiction in the common law world to abolish the presumption that a wife gave the kind of consent highlighted by Matthew Hale and enabled the conviction of men for the rape of their wives. The prosecution however, had to be backed by evidence of threats or violence. Even this requirement was done away with in 1992.


Historically, marital rape was statutorily excluded from prosecution in the United States because rape was defined as the forced sexual intercourse by a male with a female who was ‘not his wife’. Nebraska became the first state to abolish the exemption from prosecution in the mid-1970s and by 1993, marital rape was a crime in all 50 states.

There were however, vast differences in how each state has viewed and prosecuted the crime. While 17 states treated marital rape and other forms of rape the same, the others had different rules such as shorter penalties or exclusions because of lack of evidence of violence. As of 2005 however, South Carolina remains the only US state where proof of excessive force or violence of a “high and aggravated nature” is required to establish an offence of marital rape.

Human Rights Supreme Court of India

Four judgments to illustrate the Supreme Court’s liberal approach to maternity benefits

PraptiPatelOn December 3, 2014, the Supreme Court of the United States of America heard the case of Young v. United Parcel Service, a case filed by Peggy Young of Maryland. An employee of the respondent company, she was placed on unpaid leave when she became pregnant in 2006, resulting in the loss of her medical benefits. A district judge and the U.S. Court of Appeals have already ruled in favour of the shipping company, but activists in favour of Young are hopeful that the Supreme Court will take a different stand on the issue.

While the Court ponders the issue, let us look closer home. What has been the stand of the Supreme Court of India on the issue of maternity leave and benefits?

Invasive questionnaires

In Mrs. Neera Mathur v. Life Insurance Corporation of India, the petitioner’s employment with the LIC was terminated after she returned from maternity leave. The reason given was that she had withheld information about her pregnancy in a questionnaire she had filled out at the time of her appointment. After a perusal of the questionnaire, the Supreme Court found that it required female candidates to provide information about the dates of their menstrual cycles and past pregnancies. The Court held that the questionnaire was an invasion of privacy and directed the LIC to reinstate the petitioner and delete the offending columns from its future questionnaires.

Consider Sundays and unpaid holidays for computing period of work to qualify for maternity benefits 
Mother and child, Delhi IndiaIn Ram Bahadur Thakur (P) Ltd. v Chief Inspector of Plantations, a female worker employed at the Pambanar Tea Estate was denied maternity benefits on the grounds that she had actually worked for 157 days instead of the 160 days required to qualify for them. The Supreme Court, however, held that for the purposes of computing maternity benefits, all days including Sundays and unpaid holidays must be taken into consideration.

Daily wagers must get benefits too

WorkSafeAntiSexualHarassmentIn Municipal Corporation of Delhi v. Female Workers’ (Muster Rolls) and Another, the Municipal Corporation of Delhi stated that it granted maternity leave to its regular female workers but not to the daily wage ones, that is, the ones on the muster rolls. The respondents argued that the practice was unfair as there was hardly any difference in the work allotted to female workers who were regular and those who were on daily wage. Accepting the contention, the Supreme Court upheld the right of female construction workers to be granted maternity leave by extending the scope of the Maternity Benefits Act, 1961 to daily wage workers.

Two years uninterrupted childcare leave

In a landmark case last year, Kakali Ghosh v. Chief Secretary, Andaman & Nicobar Administration and Others, the main question was whether a female employee of the Central Government could ask for 730 days of uninterrupted child care Llave under the Central Civil Services (Leave) Rules, 1972. Justices S.J. Mukhopadhaya and V. Gopala Gowda of the Supreme Court held that a female employee of the Central Government is entitled to two years uninterrupted leave for childcare, which may also include illnesses and schoolwork. It held that the judgment of the Calcutta High Court, Circuit Bench at Port Blair was ignorant of the rules framed by the Central Government and directed the respondents to comply with the directions issued by the Central Administrative Tribunal, Calcutta, Circuit Bench at Port Blair.

Human Rights

For the “persons” who are women

NainaKapur_equalitylawIn 1915, having completed all the necessary qualifications in law, Regina Guha applied to be a pleader at the Calcutta Bar. Her application found its way to the High Court of Calcutta where a four-judge bench had to determine whether “persons” admitted as “pleaders” included women. With unhesitating certainty, the bench declared they had “no escape from the position that the Legislature in this country never contemplated the admission of women to the rank of Legal Practitioners.” There was nothing in the legislation which prohibited women as pleaders. Moreover, degrees in law could be conferred on both men and women in Calcutta University. But the bench was adamant.

“There may obviously be weighty reasons why in the University Act words importing the masculine gender may be taken to include females… in the Pleaders Act no such intention can reasonably be attributed to the Legislature.”

In hindsight, the overt gender bias within such reasoning is glaringly obvious. Today however, the heart of such inequality lies in the subtlety of a subtext and its impact on women.

Much has been made of the fact that three out of four lawyers appointed as Senior Advocates by the Supreme Court last week were women. When it comes to equality however, context is relevant. According to a 2013 list of Senior Advocates designated by the Supreme Court of India since 1955, only five out of 309 have been women. As of this week, that number increased to eight. Even that has taken close to fifty years. Of the 200-plus lawyers appointed as Senior Advocates in Delhi and Mumbai over a period of twenty years (up to 2011), only three were women.

Is it a trend? For now, that might be premature. While headlines on such appointments make visible the obvious contribution women are making within the legal profession, the trickle of numbers betrays an underlying subtext of systemic bias within which decision-making about such appointments (be it the Bench or the Bar) continues to take place. That is why the message of leadership matters. To his credit, the transitional ease with which the current Chief Justice of India, through such appointments, has signaled a readiness to abandon the gendered myopia which plagues the profession is certainly welcome. Equality can be a place from which stereotypes and prejudices are challenged or from where they are perpetuated. From that perspective, I would urge more such champions, within law firms, legal academia, social media, civil society law groups, and other law related workplaces to follow the Chief Justices’ cue- assault the system with women and level the playing field.

In that vein, as one amongst a growing population of women who now embody the profession of law, I applaud my professional peers — Vibha Dutta Makhija, Kiran Suri, and dear friend Meenakshi Arora for the recognition they have all earned and justly received.

Regina would be beaming — for the “persons” who are now apparently women — as are all of us.

(Naina Kapur is a preventive law and equality advocate.)