‘Criminalising marital rape is about respecting the wife’s right to say no’

Exception 2 of Section 375 Indian Penal Code (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.

Criminalising marital rape is about respecting the right of a wife to say “no” and recognising that marriage is no longer a universal licence to ignore consent, advocate Karuna Nundy told the Delhi high court on Monday while arguing her case for criminalising marital rape in India.

Advocate Karuna Nundy said “until marital rape becomes an explicit offence, it will remain condoned”.

A bench of justices Rajiv Shakdher and C Hari Shankar is currently hearing a bunch of PILs filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association, and two individuals seeking to strike down the exception in the Indian rape laws that insulates husbands on the grounds that it discriminated against married women who were sexually assaulted by their husbands.

Exception 2 of Section 375 Indian Penal Code (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.

Nundy said “until marital rape becomes an explicit offence, it will remain condoned”.

“This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse. It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal licence to ignore consent. The normative force of a judgment of this court will go a long way to realising our long cherished constitutional goal of equal respect and dignity to all,” Nundy said.

Arguing that the Constitution of India is transformative and the citizens are transformed by it, Nundy said, “With the Constitution in our hands, women have gained universal suffrage and the right to vote, to worship, to work without being sexually harassed at workplace and against triple talaq.”

She added: “We travel every day in ridding ourselves of sexism, against citizens of all genders. It is our constitutional duty to work at it. There are many well meaning men who might have thought of sexual harassment as a ‘compliment’. At work, before Vishaka, for instance, repeatedly asking a colleague for a date after she has said no, or constantly calling a woman ‘hot’ at work were okay. But the law, and the debates around it, has made many think.”

During the proceedings, the court asked Nundy to address the question as to whether the court will be creating a new offence in case the Exception 2 of Section 375 IPC is struck down.

The court also asked her to address the question as to whether Exception 2 is manifestly arbitrary or discriminatory or both.

The court also asked advocate Monica Arora, counsel for the Union government, whether she had any instructions on the withdrawal of the earlier stand taken by the Centre in 2017.

“You need to come back with an answer. In between, if there is some development which is relevant, then we can take cognizance of that,” justice Shakdher said.