The Delhi High Court is hearing a petition on marital rape challenging the scope of section 375 IPC. The court observed that while there can be no compromise with women’s right to sexual autonomy and any act of rape has to be punished. But there is a “qualitative difference” between a marital and a non-marital relationship as marriage gives a legal right to expect reasonable sexual relation from the spouse and it played a part in the marital rape exemption in criminal law.
Non-marital vs. Marital: Justice C. Hari Shankar, who formed part of the division bench orally observed that a non-marital relation, no matter how close, and a marital relationship cannot be “parallelised“.
Marital rape not included in 375: The court questioned as to why the exception from the offense of rape granted to a married couple had remained in the legislature for several years in spite of developments suggesting the contrary and remarked that “one of the possible reasons” was the wide scope of Section 375 of Indian Penal Code which included even a single act of “unwilling sex” as rape.
“When a party gets married, there is a right – it can lead to divorce – a legal right to expect a normal, reasonable sexual relationship with your partner… That qualitative difference has a part to play in the exception,” explained the judge, clarifying that he was neither expressing his final opinion on the petitions nor examining “whether marital rape should be punished” at this stage.
Issue requires serious consideration: Justice Shankar also emphasised that the offence of rape was punishable with 10 years imprisonment and the issue of removal of marital rape exemption required “serious consideration”
Husband has no right to compel: “There is no compromise with a woman’s right to sexual and bodily integrity. A husband has no business to compel. (But) the court can’t ignore what happens if we knock it (marital rape exception) off,” he stated.
Term marital rape: The judge also expressed his reservations with regards to the use of the term “marital rape”, saying that every act of rape has to be punished and repeated use of “marital rape” to define any form of an unwilling sexual relationship between a husband and a wife was a “pre-decision”. “There is no (concept of) marital rape in India… If it is rape – marital, non-marital or any kind, it has to be punished. Repeated use of the word, according to me, obfuscates the actual issue,” he said.
Criminalising marital rape: The judge also said that in his prima facie opinion, concerns surrounding misuse were not relevant to deciding the issue of criminalising marital rape.
Non-consensual sexual intercourse or ‘rape’ is abhorrent and inherently violative of the basic right to life and liberty: Senior Advocate Rajshekhar Rao, an amicus curiae in the case, on Thursday continued arguments on second day and contended that act of non-consensual sexual intercourse or ‘rape’ is abhorrent and inherently violative of the basic right to life and liberty guaranteed under Article 21. Rao also submitted that it violates a woman’s right to equality, personal and sexual autonomy and reproductive choices.
Submitting that the exception in Section 375 IPC denies the wife the ability to prosecute her husband for the act of rape, Rao submitted, “The law says take [away] the marriage, you [husband and wife] are two equals in the eye of law. So why should the husband’s desire to have intercourse with his wife trump his wife’s desire to not have intercourse that day”.
Violation of fundamental rights: Advocate Karuna Nundy, appearing for the NGOs, argued that the marital rape exception created an anomaly as it was “under-inclusive” and violated Articles 14, 15(1) and 21 of the Constitution. She contended that the exemption violated the right to dignity and sexual autonomy of women and there were thousands of victims who approached her clients for protection.
The petitioners had said that marital rape was the biggest form of sexual violence against women and the Delhi government had said that this act was already covered as a “crime of cruelty” under IPC.
In 2018, the city government had told the predecessor bench hearing the case — headed by then Acting Chief Justice Gita Mittal — that wherever a spouse indulged in sexual relations without the willingness of the other, it was already an offence under IPC and a woman was entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy under Article 21 (protection of life and personal liberty) of the Constitution).
Central Government view: The central government, in its affidavit filed has 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 husband.
Not possible to park for another 10 years: “The point is if you are going to say that we should wait till all states and all commissions come and you revamp the entire IPC, CrPC and Evidence Act before we decide this, that is not possible, that will take you 10 years to do that exercise. You are doing something particularly qua this provision [Section 375 IPC], then you tell us,” said the division bench of Justice Rajiv Shakdher and Justice C Hari Shankar, while addressing a counsel representing the Centre.
The NGOs have challenged the constitutionality of section 375 IPC on the ground that it discriminated against married women being sexually assaulted by their husbands. “The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus Government is already seized of the matter,” said the Ministry of Home Affairs in an additional affidavit before the court.
Submitting that the exception in Section 375 IPC denies the wife the ability to prosecute her husband for the act of rape, Rao submitted, “The law says take [away] the marriage, you [husband and wife] are two equals in the eye of law. So why should the husband’s desire to have intercourse with his wife trump his wife’s desire to not have intercourse that day”.
Hon’ble Mr Justice Rajiv Shakdher
Judge Delhi High Court
Hon’ble Mr Justice C. Hari Shankar
Judge Delhi High Court
