Sammya Mukhopadhyay

New Delhi, Delhi, India

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. Also Read | Disappointing, upsetting: Activists react to Delhi HC verdict on marital rape criminalisation,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. Also Read | Continuance of marital rape exception egregiously problematic: Justice Shakdher,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. Also Read | India among 30 odd countries that have not criminalised marital rape,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.

{\"time\":1652348457173,\"strCount\":4047,\"blocks\":[{\"type\":\"paragraph\",\"data\":{\"text\":\"The Delhi High\\nCourt, hearing a bunch of petitions on marital rape, came up with a split\\nverdict on Wednesday on <a href=\\\"https://opoyi.com/english/what-is-marital-rape-and-why-is-it-still-not-a-crime-in-india\\\">criminalising marital rape</a>. A two-judge bench was\\nhearing a bunch of petitions on the question of criminalising marital rape. Justice\\nRajiv Shakdher voted that the <a href=\\\"https://opoyi.com/consent-amongst-most-underrated-concepts-in-our-society-rahul-gandhi\\\">law be struck down</a> while Justice C Ravi Shankar\\nruled against criminalising marital rape. The decision will now lie with the\\nSupreme Court. The fundamental question while deciding on jurisprudence with\\nregard to marital rape is that of consent.\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"Also Read |&nbsp;<a href=\\\"https://opoyi.com/english/disappointing-upsetting-activists-react-to-delhi-hc-verdict-on-marital-rape-criminalisation\\\">Disappointing, upsetting: Activists react to Delhi HC verdict on marital rape criminalisation</a>\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"India’s rape laws\\nare contained in Section 375 of the Indian Penal Code (IPC). While the law\\ndefines rape, it posits two exceptions. The first, that a medical procedure\\nwould not constitute rape and the second, sexual intercourse or sexual acts of\\na man with his wife, if the wife is over 18 years of age. \"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"People seeking the\\ncriminalisation of marital rape argue that rape is rape whatever be the\\nrelationship between the perpetrator and the victim. This was the argument that\\nfeatured prominently in <a href=\\\"https://opoyi.com/english/continuance-of-marital-rape-exception-egregiously-problematic-justice-shakdher-1\\\">Justice Rajiv Shakdher’s judgement</a>.\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"According to\\nJustice Shakdher, differentiation on grounds of marital rape creates a\\nclassification between married and unmarried women and such a classification is\\nunreasonable and manifestly arbitrary. The justice further observed that when\\nmarriage is tyranny, the state has no legitimate interest of saving it.\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"Also Read |&nbsp;<a href=\\\"https://opoyi.com/english/continuance-of-marital-rape-exception-egregiously-problematic-justice-shakdher-1\\\">Continuance of marital rape exception egregiously problematic: Justice Shakdher</a>\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"Justice Shakdher\\nfound the marital rape exception violative of Article 21 of the Indian\\nConstitution. The judge found that the offence of rape and injury caused\\nremains the same irrespective of who the offender is, and that the right to\\nwithdraw consent at any given point in time forms the core of the woman’s right\\nto life and liberty which encompasses her right to protect her physical and\\nmental well-being.\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"Also Read |&nbsp;<a href=\\\"https://opoyi.com/english/india-among-30-odd-countries-that-have-not-criminalised-marital-rape\\\">India among 30 odd countries that have not criminalised marital rape</a>\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"He further\\nobserved that the marital rape exception is also in violation of Article 15 and\\n19(1)(a) of the Constitution. He found that the marital rape exception\\ndiscriminates within the same sex, solely on the ground of martial status and\\nthe exception violates the guarantee given by the Constitution concerning\\nfreedom of expression to married women.\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"<a href=\\\"https://opoyi.com/english/marriage-most-pristine-institution-of-mankind-not-gladiatorial-arena-justice-c-hari-shankar\\\">Justice C Hari\\nShankar</a>, in disagreement with Justice Shakder, observed that an intelligible\\ndifferentia does exist between married and unmarried women and that it is not open\\nto a court to examine whether the object of legislation is sufficient to\\njustify the differentia. &nbsp;&nbsp;\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"He further\\nobserved that there is nothing in the exception that obligates a wife to consent\\nto having sex and added that the exception retains the wife’s decisional\\nautonomy and has the right to say no, or, “a joyful yes”.\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"“Any assumption\\nthat a wife, who is forced to have sex with her husband on a particular\\noccasion when she does not want to, feels the same degree of outrage as a woman\\nraped by a stranger, in my view, is not only unjustified, but is ex facie\\nunrealistic,” he said. \"}}]}

<ul>
 <li>The Delhi HC came up with a split verdict on marital rape exception</li>
 <li>The marital rape exception exists as part of Section 375</li>
 <li>The Supreme Court is going to decide the matter</li>
</ul>

Opoyi Central

On marital rape, the consent question is all that matters

Maritalrape

India

Section375

Asia

IndiaNews

World

Delhi, India

The Delhi High Court delivered a split verdict on criminalisation of marital rape on Wednesday. The debate over marital rape has been going on for years now. Marital rape is the act of sexual intercourse with one's spouse without consent. As per UN Population Fund, more than two-thirds of married women in India aged between 15 and 49, have been beaten or forced to provide sex, regardless of their socio-economic positions, according to Deccan Herald. Also Read: Disappointing, upsetting: Activists react to Delhi HC verdict on marital rape criminalisation,While the figures are scary, this has not necessarily translated into legislation to protect these women. In fact, India is one among the 30 countries that is yet to criminalise marital rape. More than 104 nations across the world have criminalised the act. Section 375 of the Indian Penal Code 1860 states that sexual acts by a man on a woman against her free will or consent would constitute rape. However, there are two exceptions to this. The first exception says that “a medical procedure or intervention shall not constitute rape”. The second exception: “sexual intercourse or sexual acts by a man with his own wife” when the wife is above 18 years of age would not constitute rape. Apart from the exception , it is also about the mindset. In 2016, then Minister for Women and Child Development Maneka Gandhi she said India is not ready to criminalise marital rape because it cannot be defined under the same parameters “as understood internationally. She said that the concept of marital rape “cannot be suitably applied in the Indian context. The minister cited “illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc. ” as reasons behind the Centre's refusal to criminalise marital sex. In 2019, former Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India, “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values. In fact, the Centre has even gone on to say that various other countries, mostly Western, have criminalised marital rape but it does not necessarily mean India should also follow them blindly.The other argument that has been made against criminalising the act is the false cases that are filed against husbands across India by wives on the ground of cruelty. Many argue that criminalising marital rape could give wives a free pass to file false cases under Section 498-A to get their husbands arrested. However, in recent years the Supreme Court and various High Courts have taken strides to acknowledge gender discrimination in situations where the law thwarted deviation from traditional sex roles. In March this year in a landmark ruling, the Karnataka High refused to quash rape charges filed by a wife against her husband, defying the exception in law, and, instead, called on lawmakers to hear the “voices of silence.”“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the Karnataka High Court said. The “age-old…regressive” thought that “husbands are the rulers of their wives, their body, mind and soul should be effaced,” the court said.

{\"time\":1652338006017,\"strCount\":4309,\"blocks\":[{\"type\":\"paragraph\",\"data\":{\"text\":\"The <a href=\\\"https://opoyi.com/delhi-high-court-pulls-up-aap-government-over-surge-in-covid-19-cases\\\">Delhi High Court </a>delivered a split verdict on criminalisation of <a href=\\\"https://opoyi.com/english/disappointing-upsetting-activists-react-to-delhi-hc-verdict-on-marital-rape-criminalisation\\\">marital rape</a>&nbsp;on Wednesday.&nbsp; The debate over marital rape has been going on for years now. Marital rape is the act of <a href=\\\"https://opoyi.com/supreme-court-quashes-skin-to-skin-contact-order-cites-sexual-intent\\\">sexual intercourse</a> with one's spouse without consent.&nbsp; As per UN Population Fund, more than two-thirds of married women in <a href=\\\"https://opoyi.com/britain-adds-india-to-covid-red-list-can-indians-still-travel-to-uk\\\">India</a> aged between 15 and 49, have been beaten or forced to provide sex, regardless of their socio-economic positions, according to Deccan Herald.&nbsp; Also Read:&nbsp;<a href=\\\"https://opoyi.com/english/disappointing-upsetting-activists-react-to-delhi-hc-verdict-on-marital-rape-criminalisation\\\">Disappointing, upsetting: Activists react to Delhi HC verdict on marital rape criminalisation</a>\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"While the figures are scary, this has not necessarily translated into legislation to protect these women. In fact, India is one among the 30 countries that is yet to criminalise marital rape. More than 104 nations across the world have criminalised the act.&nbsp; Section 375 of the Indian Penal Code 1860 states that sexual acts by a man on a woman against her free will or consent would constitute rape. However, there are two exceptions to this. The first exception says that “a medical procedure or intervention shall not constitute rape”.&nbsp;&nbsp; The second exception: “sexual intercourse or sexual acts by a man with his own wife” when the wife is above 18 years of age would not constitute rape.&nbsp; Apart from the exception , it is also about the mindset. In 2016, then&nbsp;Minister for Women and Child Development <a href=\\\"https://opoyi.com/maneka-gandhi-shuts-her-animal-centre-after-dog-cruelty-video-surfaces\\\">Maneka Gandhi</a>&nbsp;she said India is not ready to criminalise marital rape&nbsp;because it cannot be defined under the same parameters “as understood internationally\\\".&nbsp; She said that the concept of marital rape “cannot be suitably applied in the Indian context\\\". The minister&nbsp;cited “illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.,” as reasons behind the Centre's refusal to criminalise marital sex.&nbsp; In 2019,&nbsp;\\n\\nformer Chief Justice of India Dipak Misra said that marital rape should not be made a crime in India,&nbsp;“because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.\\\"\"}},{\"type\":\"paragraph\",\"data\":{\"text\":\"In fact, the Centre has even gone on to say that \\\" various other countries, mostly Western, have <a href=\\\"https://opoyi.com/positive-developments-in-lgbt-rights-but-69-nations-criminalise-same-sex-relations-report\\\">criminalised</a> marital rape but it does not necessarily mean India should also follow them blindly.\\\" The other argument that has been made against criminalising the act is the false cases that are filed against husbands across India by wives on the ground of cruelty. Many argue that criminalising marital rape could give wives a free pass to file false cases under Section 498-A to get their husbands arrested.&nbsp; However, in recent years the Supreme Court and various High Courts have taken strides to acknowledge gender discrimination in situations where the law thwarted deviation from traditional sex roles.&nbsp; In March this year in a landmark ruling, the Karnataka High&nbsp; refused to quash rape charges filed by a wife against her husband, defying the exception in law, and, instead, called on lawmakers to hear the “voices of silence.” “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” the Karnataka High Court said. The “age-old…regressive” thought that “husbands are the rulers of their wives, their body, mind and soul should be effaced,” the court said. \"}}]}

Madhusree Goswami

<ul>
 <li>India is one among the&nbsp; 30 countries that is yet to criminalise &nbsp;marital rape</li>
 <li>The exception granted in Section 735 of the IPC means that marital rape is not a recognised offence</li>
 <li>Many have suggested that criminalsing the act will spoil "Indian culture"</li>
</ul>

#Maritalrape

On marital rape, the consent question is all that matters

What is marital rape and why is it still not a crime in India?