Marital rape: All women have the right to say ‘no’

A bench of Delhi high court justices Rajiv Shakdher and C Hari Shankar, while hearing a clutch of petitions to criminalise marital rape, questioned how the dignity of a married woman is different from that of an unmarried woman

Every woman, married or unmarried, has a right to say “no”, and the fact that a married woman has other civil and criminal remedies does not mean marital rape should not to be taken seriously, the Delhi high court on Tuesday observed.

The court was hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals, who have sought removal of the exception to Section 375, saying that it discriminated against married women who were sexually assaulted by their husbands. (Getty Images/iStockphoto)

A bench of justices Rajiv Shakdher and C Hari Shankar, while hearing a clutch of petitions to criminalise marital rape, questioned how the dignity of a married woman is different from that of an unmarried woman.

“Why is it different for a unmarried woman? How does it affects an unmarried woman’s dignity, but not a married woman’s dignity? Whether she is married or not, she has a right to say ‘no’. Have 50 other countries (where marital rape is a criminal offence) got it wrong? I find it difficult to appreciate when you are saying that there are other remedies and hence, there is no violation of Article 21 (right to life and liberty). The question is whether it is an offence or not, and whether this offence is tenable under our Constitution,” justice Shakdher, speaking for the bench, observed.

The judge added that the exception in the rape law (Section 375 of the Indian Penal Code) creates a “firewall” from making marital rape an offence, and it has to be tested on the anvil of Article 14 (right to equality) and Article 21 of the Constitution.

An exception clause in Section 375 in the 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.

“A woman remains a woman. You can show us the section, but jurisdiction after jurisdictions, it has been held that merely because you are married, it is not a good enough to say that it is not an offence,” remarked the bench as it questioned the submissions by the Delhi government counsel Nandita Rao.

Rao argued that since a married woman has the remedies of lodging a complaint for domestic violence, grievous hurt, or get divorced on the grounds of cruelty, there would be no violation of her rights under Article 21 of the Constitution.

On Monday, the bench observed that even though there can be no compromise on the bodily autonomy of a woman, marital rape may not be treated as a prosecutable offence because of the qualitative difference between a marital and non-marital relationship.

The court was hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals, who have sought removal of the exception to Section 375, saying that it discriminated against married women who were sexually assaulted by their husbands.

The central government, in its affidavit filed in 2018, maintained 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 husband.

Last week, the city government said that courts do not have the power to create a new offence even as it argued that marital rape is treated as a “crime of cruelty” in India.

On Tuesday, Rao argued, “There is no dispute that a woman has the right to bodily integrity; she has a right to say no. Just because this is not a criminal offence under Sections 375, does that create a compulsion on a woman to have sex with her husband? The answer is no. She has a remedy to have divorce on the ground of cruelty. This is under Hindu and Muslim law. She also has a right to register a criminal case under Section 498A (cruelty)of IPC. As of today, FIRs have been registered by the spouses under sections 377 (carnal intercourse), 498A and 326 (grievous hurt) of IPC.”

To this, the court asked what is the remedy available to a woman in case her husband forces himself on her, despite her refusing to have sexual intercourse. “You are saying that she can go and seek divorce on the ground that she doesn’t want to cohabitate. That is not the point. The point is an offence has taken place. The exception created a firewall. Is that firewall justifiable on the test of Article 14 and 21? It is only that particular narrow aspect that we have look into,” justice Shakdher said.

Rao said the existence of the exception to Section 375 does not take away a woman’s right to say “no” in a marriage, and stressed that the sections applied in case of a married woman are different to those applicable in case of an unmarried woman.

The court will continue to hear the matter on Wednesday.