NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

BANGALORE

LEGAL METHODS
PROJECT

Is Law Necessary?

By
V SREEDHARAN (2596)
 Law as an instrument

Throughout mankind, various mechanisms have been used to influence human behaviour and
bring about social change. Educational reforms and protests were the earliest tools to instigate
social change. In more recent times with the advent of the internet, social media and exposure
to foreign culture have been used as instruments of social change. However, one of the most
effective instrument in terms of outreach has been law.

In this paper, I aim to explore the question of whether the law as an instrument of social change
is necessary, in the context of the appeal to criminalise marital rape in India.

I shall argue that law is necessary to foster social change, particularly with regards to the
movement to criminalise marital rape in India and explain how the law is efficacious in
changing the perception of spousal rape.

Dean Roscoe Pound asserted that legal theory is immune to changes in the society and usually
trails a generation behind changes in philosophical ideals. 1 When Oliver Wendell Holmes, Jr.
said “The life of law has not been logic, it has been experience”, he was one of the first jurists
who said that legal reasoning should not be studied like mathematics or geometry. 2 Here,
Holmes was attempting to tackle the rift that had been created between law and society. He
contended that this division occurred when either the law became too advanced for society, or
when the society progressed at too fast a pace for law to keep up.

This was the base on which Pound shed light on the increasing gap between “legal change”
and “social change”.3 The theory of “legal lag” explains the mismatch when the law governing
social interactions in a land remains unchanged with respect to the change in technology or
economy. For example, the failure of the English Common Law to take into account the
industrial revolution, or the Indian Penal Code’s vulnerability to crime in the technological
realm are relevant examples of when the law failed to acknowledge the advancement in human
civilisation.4

1
Linus J. McManaman ‘Social Engineering: The Legal Philosophy of Pound’ (2013) 33 (1) St. John's Law
Review, 1
2
O. W. Holmes, Jr., The Common Law (The Dover Publications Inc. 1991)
3
Linus J. McManaman (n 1)
4
Joel Franklin Brenner ‘Nuisance Law and the Industrial Revolution.’ (1974) 3 (2) The Journal of Legal Studies,
403

1
 Marital Rape

Marital rape is defined as “rape committed by the person to whom the victim is married”.5 In
India, while Section 375 of the IPC criminalises rape, an exception states that “sexual
intercourse by a man with his wife, as long as the wife is not under fifteen years of age, is not
rape”.6 In Nimeshbhai Bharatbhai Desai v. State of Gujarat, although the husband raped his
wife, the Gujarat High Court’s conviction of the accused was limited to an offence of cruelty
and unnatural sex under Section 498A and Section 377 of the IPC respectively. 7

RIT Foundation v. Union of India is the most recent case that has explored the potentiality of
outlawing marital rape. It is a pending case in the Delhi High Court.8

There are three main characteristics of law that sets it apart from other media of bringing about
social change:

DENUNCIATION

In the context of marital rape, if the exception in Section 375 is removed, it demonstrates to
the public that marital rape is not acceptable. On the contrary, as long as the act of sexual
intercourse without the consent of the wife is not a criminal offence the common man cannot
be made to realise the unconstitutionality of marital rape. The legality of the exception in
Section 375 is an impediment, which can only be removed using the law.

DETERRENCE

Unlike other instruments of social change like protests or education, the law has an inherent
value of deterrence. In India, the law has been used successfully to curb unconstitutional
practices, primarily based on religion. The Bengal Sati Regulation, 1829 was one of the first
acts that abolished an established practice. The flexibility of the Indian Constitution has
allowed the judiciary and the legislature to successfully clamp down on practices detrimental
to society. Untouchability (Offences) Act, 1955 and Schedule Castes and Schedule Tribes
(Prevention of Atrocities) Act, 1989 are just two instances of law making use of this. If the
exception of Section 375 is abolished, instances of spousal rape will be equated with instances
of non-spousal rape. This equation leads to deterrence in two ways. Firstly, the certainty of

5
The Penal Code of California 1872, s 262
6
The Indian Penal Code 1860, s 250
7
Nimeshbhai Bharatbhai Desai v. State Of Gujarat (2017) SCC Online Gujarat 1386
8
RIT Foundation v. The Union of India (2017) W.P. (C) No.284/2015

2
punishment will be higher, since rape receives widespread media attention and triggers public
protests in the country. Marital rape would also fall under the purview of fast-track courts.
Secondly, as of now the minimum sentence stipulated for marital rape is much lower than the
usual instances of rape. If the severity of the punishment of both instances of rape is the same,
then that may influence the behaviour of the potential rapist.

POWER OF THE JUDICIARY

On August 2017, the Delhi High Court asked the Centre to explain its stance regarding marital
rape in the background of several petitions seeking to criminalise the act. 9 The arguments put
down by the Central Government were:

1. There is a fear that marital rape could become a tool of harassment wielded by women
against their husbands similar to Section 498A (Anti-Dowry Harassment Law). They
explained that deletion of the exception in Section 375 would not serve any purpose since
there would be no way to verify allegations of rape made by a wife against her husband
and the judgement as to what qualifies as marital rape will singularly rest on the wife.
2. Marriage is a sacred institution and marital rape will only corrupt its value. At the time of
marriage, the husband and wife give consent to the spouse to have sex, and any such sexual
act cannot be termed as rape.

To refute the first argument, it is important to note that only less than 10% of cases filed under
Section 498A is false, and 90% of the cases are genuine.10 Similarly, the percentage of false
rape accusations is approximately 8% of the total rape accusations filed.11 In both instances, it
is clear that compared to the men harassed by false accusations, many more women have
suffered. Hence, not recognising these laws for the fear of false allegations is an alarming
guideline, particularly when courts do take action against false sexual harassment accusers.12

9
Pritam Pal Singh, ‘Marriage does not mean wife submits to husband for sex: Delhi HC on marital rape’ The
Indian Express (New Delhi, 18 July 2018) <https://indianexpress.com/article/india/marriage-doesnt-mean-wife-
submits-to-husband-for-sex-delhi-high-court-on-marital-rape-5263971/> accessed on 13 August 2019
10
PTI, ‘About 9% of cases on harassment of women false: Haribhai Partibhai Chaudhary’ Economic Times (New
Delhi, 13 May 2015) <https://economictimes.indiatimes.com/news/politics-and-nation/about-9-of-cases-on-
harrassment-of-women-false-haribhai-parthibhai-chaudhary/articleshow/47267214.cms?from=mdr> accessed on
13 August 2019
11
Katty Kay, ‘The truth about false assault accusations by women’ BBC (18 September 2018)
<https://www.bbc.com/news/world-us-canada-45565684> accessed on 13 August 2019
12
PTI, ‘Woman filed ₹50K for false sexual harassment plaint’ The Hindu (New Delhi, 13 July 2019)
<https://www.thehindu.com/news/cities/Delhi/woman-fined-50k-for-false-sexual-harassment-
plaint/article28416807.ece> accessed on 14 August 2019

3
Secondly, in July 2018 the Delhi High Court held that in a marriage, neither the husband nor
the wife consent to a physical relationship. The court added that both the husband and the wife
have the liberty to refuse a sexual advance made by their spouse.13

The judiciary taking the initiative to bridge the gap between the law and cultural norms
becomes essential when the legislature consists of the conservative elite. The power vested by
the Constitution allows the judiciary to bridge the gap between culture and the current legal
framework, unlike other instruments of social change. Notwithstanding the fact that there is
room for false accusations in our judicial system, the need for provisions for marital rape as an
offence should not be omitted.

Conclusion

In cases of decreasing legal lag and enabling social change, the law is an effectual agency. This
is principally because of the inherent characteristics of the law. The binding power of law
makes all the citizens in its jurisdiction obligated to follow it. It draws this power simply from
the fact that the majority of society believes it to be the case.

We can conclude then, that compared to other instruments of social change, law has a more
immediate effect, and influences a greater number of people than traditional media. With the
urgency of the situation of marital rape in the country, it is especially necessary that law steps
in to initiate this cultural change.

13
Pritam Pal Singh (n 9)