Marital rape a crime? Delhi HC verdict split

Updated on May 12, 2022 04:25 AM IST

Exception 2 of Section 375 of the Indian Penal Code (IPC) decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 18, is not rape.

Justice Shakdher said it would be tragic if a married woman’s call for justice was not heard even 162 years after the enactment of IPC.(Representative image)
Justice Shakdher said it would be tragic if a married woman’s call for justice was not heard even 162 years after the enactment of IPC.(Representative image)

The Delhi high court on Wednesday delivered a split verdict on the criminalisation of marital rape on Wednesday — with one judge calling an exception that exempts husbands from being prosecuted for non-consensual sex with their wives as “morally repugnant” and the other saying it did not violate any law, was not unconstitutional and could continue to exist.

But both judges — justice Rajiv Shakdher, who ruled that the exemption be written down and justice C Hari Shankar, who ruled that it be upheld — allowed the petitioners to approach the Supreme Court, saying the issue raised a substantial question of law and required a decision by the top court.

“Regrettably, I was not able to persuade Hon’ble Mr Justice C Hari Shankar to my point of view. He, perhaps, hears a beat of a different drummer. I respect that,” justice Shakdher said in his judgment.

“I concur with my esteemed brother in his decision to grant certificate of leave to appeal to the Supreme Court in the present matter as it involves substantial questions of law,” justice Shankar said.

Exception 2 of Section 375 of the Indian Penal Code (IPC) decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under 18, is not rape.

The petitioners had challenged the constitutionality of the marital rape exception on the ground that it discriminated against married women who are sexually assaulted by their husbands. Several petitioners told HT that they would move the top court for a plausible conclusion to the case.

Mariam Dhawale, national general secretary of the All India Democratic Women’s Association (AIDWA), one of the petitioners, said, “We are disappointed that the violence that the married women undergo was not taken into consideration by the court and we shall surely appeal to the higher court that finally victims of sexual violence within marriage get justice.

Justice Shakdher said it would be tragic if a married woman’s call for justice was not heard even 162 years after the enactment of IPC.

“In every sense, marital rape exception (MRE), in my view, violates the equality clause contained in Article 14 of the Constitution… Marital rape with one stroke deprives nearly one-half of the population of equal protection of the laws. The classification between married and unmarried women in the context of MRE (and what is observed hereinabove) is without doubt unreasonable,” he said in a 192-page judgment.

He noted that the law empowered a sex worker to say no and that a married woman couldn’t say no to her husband even if he suffered from a communicable disease or she was unwell. He said while an unmarried woman rape victim was protected and could take succour in IPC, the same protections didn’t exist if the complainant was a married woman.

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution,” the judge held.

On the submission that the husband has “conjugal expectation” to have sexual communion with his wife, he said it was tenable as long as the expectation was not equated to an unfettered right to have sex without consent of the wife.

“Conjugal expectations, though, legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition,” justice Shakdher said.

“To the petitioners’ and their ilk I would say it may seem that you plough a lonely furrow today but it will change, if not now, some day. To the naysayers I would say that every dissent adds flavour and acuteness to the debate at hand, which assists the next court, if nothing else, in arriving at a conclusion which is closer to justice and truth,” he added.

In his 200-page judgment, justice Shankar said legitimate expectation of sex was an “inexorable incident of relationship” between a husband and wife, which distinguished it from other relationships.

“The petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape, the impugned exception does not violate Article 14, 19, 21, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself…,” justice Shankar said.

The judge said that an advisable middle path was carved out by the legislature and there was no reason to interfere with the arrangement.

“As the marriage is, nonetheless, subsisting, though the couple is not together, the legislature has chosen to prescribe a suitable lesser punishment for the offence. The exercise of legislative discretion is entirely in order, and, to my mind, the challenge to the vires of the provision has no legs, whatsoever, to stand on,” the judgment read.

He said that it would be a complete misadventure for the court to strike down the exception and, thereafter, leave it to the legislature to effect other necessary amendments.

“A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?” he asked.

The court was hearing petitions filed in 2015 by non-governmental organisation, RIT Foundation, All India Democratic Women’s Association and two individuals. The trial began in 2016 and ended in 2022.

In 2017, the Union government opposed the pleas and said that India cannot blindly follow the west and criminalise marital rape as several factors have to be taken into account.

However, in mid-January this year when the hearing again resumed after a pause due to the Covid-19 pandemic, the Union government informed the high court that marital rape cannot be made into a criminal offence until the Centre’s consultation with all stakeholders is complete, paving the way for comprehensive amendments in criminal law instead of “piecemeal” changes.

Later, solicitor general (SG) Tushar Mehta, for the Centre, told the court that it is taking a “constructive approach” in the matter and sought time to reach a conclusion, adding that a half hearted reply would directly affect the citizens of the country.

During a session in the Parliament on February 2, Union minister of women and child development Smriti Irani in response to Communist Party of India MP Binoy Viswam’s supplementary query on marital rape, said that the protection of women and children is a priority but condemning every marriage as violent and every man a rapist is not advisable.

In wake of this, the Centre on February 3, told the high court that the issue of criminalizing marital rape involves a socio-legal impact and intimate family relations which cannot be judged on the basis of some arguments by lawyers. It stated that a “comprehensive approach” is required rather than a strictly legal view to come to a conclusion.

It urged the high court to stop hearing the cases for the time being, underlining that any judicial decision, without letting the Centre complete its consultation with states and other stakeholders, “may not serve the ends of justice”.

Later on February 7, the court granted two weeks to the Centre to take a consultative stand on the issue. However, even then, the Centre’s stand continued to remain in limbo.

On February 21, 2022, the court refused to give further time to the Union government and termed their stand as “Trishanku” — in limbo. It remarked that the Centre was neither here nor there, adding that it would take in consideration the stance given by them in 2017 where it opposed the petitions.

The petitioners argued that criminalising marital rape was about respecting the right of a wife to say “no”. “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 argued on January 31.

Senior advocate Rebecca John, amicus curiae, told the court that the exception must be viewed as an “instrument of oppression”. She said the court will uphold the bodily integrity of women by striking down the exception.

Opposing the pleas, non-governmental organisation Hridey, an intervenor, argued that offences concerning marriage stand on a different footing and the wisdom of Parliament in retaining the marital rape exception should not be doubted.

There are other sufficient provisions in the IPC (Indian Penal Code) and other statutes to redress the grievances of a woman, advocate Raj Kapoor told the court.

Kapoor also contended that forced sexual intercourse between husband and wife cannot be labelled rape and at worse, such an act of wrongdoing can be called “sexual abuse”, and a wife cannot compel the prescription of a particular punishment against her husband “to satisfy her ego”.

As many as 50 countries around the world have done away with the provision of marital rape. India is one among 34 countries which is yet to criminalise marital rape. According to a UN Women report, most of these 34 countries were developing nations including Pakistan, China, Bangladesh, Myanmar, Sri Lanka, Haiti, Laos, Mali, Senegal, Tajikistan and Botswana.

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