Can’t allow an absurdity to prevail, amicus tells Delhi HC on marital rape

Exception of Section 375 IPC decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

Putting forward powerful arguments for criminalising marital rape, amicus curiae and senior advocate Rebecca John told the Delhi high court on Wednesday that the current rape laws are based on the doctrine that a married woman grants irrevocable sexual consent to her husband and such “absurdity should not be allowed to prevail”.

The court is hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals who have sought striking down the exception in the Indian law, saying that it discriminated against married women who were sexually assaulted by their husbands. (Getty Images/iStockphoto)

John told a bench of justices Rajiv Shakdher and C Hari Shankar that the exception in the rape law, which excludes forced sexual relations between spouses from the purview of rape, was carved out to favour the conjugal rights of the husband. She said “consent” is an underlying condition in the exception to Section 375 of the Indian Penal Code (IPC).

Exception of Section 375 IPC decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

The court is hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals who have sought striking down the exception in the Indian law, saying that it discriminated against married women who were sexually assaulted by their husbands.

John said even before Thomas Babington Macaulay, who presided over the first Law Commission in India in 1833 and said the exception was to protect the conjugal rights of a man, the concept finds its origins in the doctrine of coverture and implied consent.

“And according to this legal doctrine, the legal rights of a woman were subsumed by the husband after marriage. By entering into marriage, a wife was considered to have granted irrevocable sexual consent to her husband,” she said.

To this Justice Shakdher said, “She (wife) was almost treated under that doctrine as someone who is incapacitated from giving consent. It is like what we have in the Contract Act that certain categories of people cannot give consent. The enunciation (declaration) seems a little problematic.”

“The woman’s consent is fundamental to the invocation of 375 and so we cannot wish it away,” John said, adding that even with respect to Exception 1 in Section 375, which states that a medical procedure or intervention shall not constitute rape, a medical practitioner is not permitted to do certain acts that are mentioned in the definition of rape.

“So when we look at exceptions drafted in absolute terms, we should not allow an absurdity to prevail,” John argued.

In 2017, central government, in its affidavit filed in the case, had said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.

Last week, the union government had told the court that it was considering a “constructive approach” on the issue of criminalising marital rape and has sought suggestions from several stakeholders and authorities to make comprehensive amendments to the criminal law.

It said the Centre was undertaking a comprehensive task of amending the criminal law which includes Section 375 IPC as well.

In an additional affidavit, the Centre asserted that the marital rape exception could not be struck down only at the instance of the petitioners as the principles of natural justice required a “larger hearing of all stakeholders”.