On marital rape, the consent question is all that matters
- The Delhi HC came up with a split verdict on marital rape exception
- The marital rape exception exists as part of Section 375
- The Supreme Court is going to decide the matter
The Delhi High Court, hearing a bunch of petitions on marital rape, came up with a split verdict on Wednesday on criminalising marital rape. A two-judge bench was hearing a bunch of petitions on the question of criminalising marital rape. Justice Rajiv Shakdher voted that the law be struck down while Justice C Ravi Shankar ruled against criminalising marital rape. The decision will now lie with the Supreme Court. The fundamental question while deciding on jurisprudence with regard to marital rape is that of consent.
India’s rape laws are contained in Section 375 of the Indian Penal Code (IPC). While the law defines rape, it posits two exceptions. The first, that a medical procedure would not constitute rape and the second, sexual intercourse or sexual acts of a man with his wife, if the wife is over 18 years of age.
People seeking the criminalisation of marital rape argue that rape is rape whatever be the relationship between the perpetrator and the victim. This was the argument that featured prominently in Justice Rajiv Shakdher’s judgement.
According to Justice Shakdher, differentiation on grounds of marital rape creates a classification between married and unmarried women and such a classification is unreasonable and manifestly arbitrary. The justice further observed that when marriage is tyranny, the state has no legitimate interest of saving it.
Justice Shakdher found the marital rape exception violative of Article 21 of the Indian Constitution. The judge found that the offence of rape and injury caused remains the same irrespective of who the offender is, and that the right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental well-being.
He further observed that the marital rape exception is also in violation of Article 15 and 19(1)(a) of the Constitution. He found that the marital rape exception discriminates within the same sex, solely on the ground of martial status and the exception violates the guarantee given by the Constitution concerning freedom of expression to married women.
Justice C Hari Shankar, in disagreement with Justice Shakder, observed that an intelligible differentia does exist between married and unmarried women and that it is not open to a court to examine whether the object of legislation is sufficient to justify the differentia.
He further observed that there is nothing in the exception that obligates a wife to consent to having sex and added that the exception retains the wife’s decisional autonomy and has the right to say no, or, “a joyful yes”.
“Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic,” he said.