Sir Matthew Hale codified in a treatise the concept of ‘coverture’, which states that upon marriage a woman surrenders her agency to her husband including consent for sex. He also described abortion as a ‘great crime’
Sir Matthew Hale. By Unknown artist from Scientific Identity. Wikimedia Commons
On 11 May, the Delhi High Court delivered a split verdict on criminalising marital rape.
Justice Rajiv Shakdher, who headed the division bench, voted to strike down the marital rape exception, calling it “unconstitutional” and “tragic if a married woman’s call for justice is not heard even after 162 years”, while Justice Hari Shankar said the exception under the rape law is not “unconstitutional and was based on an intelligible differentia” created by marriage.
The court’s verdict came on PILs filed in 2015 and 2017 by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
Meanwhile, in the United States, a firestorm was caused a draft opinion from conservative Justice Samuel Alito striking down the landmark Roe vs Wade decision was leaked.
At first blush, there seems to be no link between the Indian high court’s verdict and the draft opinion from a US Supreme Court judge.
But there is – Sir Matthew Hale, a 17th-Century jurist.
As The Quint pointed out, the Delhi High Court verdict, which is being appealed, upheld a legal exception that has been part of the IPC since its inception in 1860, one which Lord Macaulay justified in his original draft of the criminal law in 1839 as an exception necessary to protect the “conjugal rights” of a husband.
That in turn came from ‘coverture’ – a concept that states that upon marriage a woman surrenders her agency to her husband including consent for sexual intercourse – codified by Hale in a treatise in the 1600s.
A sidenote on Hale: He is also infamous for sentencing two women to death for witchcraft. This, at a time, when “the more enlightened” people of the 17th Century had already begun to doubt the existence of witchcraft — an opinion the Salem, Massachusetts, judges relied on in their notoriously deadly witch trials, as per Jezebel.
To quote directly from Hale’s writings in Pleas of the Crown: “For 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.”
Alito’s draft opinion, meanwhile, cites Hale, born in 1609, on eight occasions.
Vanity Fair quoted Alito as writing in the draft opinion: “Two treatises by Sir Matthew Hale described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision’ See M. Hale, Pleas of the Crown.”
This, as The New York Times points out, from a man “whose decisions about women’s rights within marriage and over their own bodies — or, more precisely, his decisions that those rights ought to be constrained so that they wouldn’t encroach on men’s rights too much — became part of British common law, and so by extension the common law of the United States, India and other British colonies.”
“It’s so startling that within 10 days of each other, we have the leaked Alito decision and the decision on marital rape,” Karuna Nundy, a lawyer who represented the petitioners in the Delhi High Court, told the newspaper. “Both traced back to a colonial-era misogyny that the constitutions of India and the United States — that guarantee individual rights, the individual rights to privacy of the body, to bodily integrity, to free sexual expression — have overridden.”
With inputs from agencies
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