Delhi HC Delivers Split Judgement on Criminalizing Marital Rape – Indian Judiciary

Marital rape is mentioned in Section 375 of the Indian Penal Code (IPC).
Exception 2 of Section 375 says- the rape of a wife by her own husband is not a crime.
375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—
(First)— Against her will.
(Secondly)—Without her consent……………….
(Sixthly)— With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
(Exception 2)—Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The roots of this provision are found in two doctrines of the British colonial era.
The first doctrine was given by Matthew Hale, the Chief Justice of King’s Bench.
The Hale’s Doctrine said:
“Husband can’t be guilty of rape. By their mutual matrimonial consent and contract the wife has given up herself in this kind to the husband”.
The second Victorian doctrine that influenced marital rape immunity is the Doctrine of Coverture.
According to this doctrine, a woman had no independent legal identity of her own after marriage. Her identity was merged with that of her husband and all her property was passed on to him.
A batch of petitions is being heard in the Delhi High Court for declaring marital rape as a crime. The PILs were filed by the NGO RIT Foundation, All India Democratic Women’s Association, and 2 other individuals in 2015.
Justice Verma Committee, formed after the draconian Nirbhaya Case (2012) recommended making marital rape a criminal offense.
More than 100 countries around the globe have criminalized marital rape.

In RIT Foundation v. UOI

Delivering a split verdict in pleas seeking criminalisation of marital rape, Justice Rajiv Shakdherof Delhi High Court, ruled in favour of striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), where as Justice C Hari Shankar opposed the contention.

Justice Rajiv Shakdher-

Certain sexual offences need to be called out for what they are. Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender.
Oddly, the prevailing mores in society appear to stigmatize the victim rather than the rapist. Therefore, I agree with Ms Nundy that the sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.”
“This responsibility, cast on the State, extends beyond interpersonal space ordinarily available to a married couple where there is no violence. Thus, when the State exempts criminal acts such as forced sex within marriage, it unwittingly engages in unequal disbursement of rights conferred by the Constitution. Consequentially, those, who commit the offence i.e., the husbands do not suffer the rigour of the law and those, who are victims, i.e., the wives get no protection from the law,”

Violates Article 21 of the Constitution-

The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is.
The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing.
Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim,”

Consensual sex is at the heart of healthy and joyful marriage; Non-consensual sex antithesis of modern matrimony.

“Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship.
Non-consensual sex in marriagae is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals.
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 being.”
“Non-consensual sex destroys the very core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”
The judge opined that the exception is also violative of Article 19(1)(a) of the Constitution, as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.

“Besides this, MRE makes no allowance for the circumstances in which a wife may say “no” to sex. For example, a wife may refuse to engage in sexual activity with her husband when she is ill or is menstruating or is unable to engage in sexual activity because of a sick child. The wife may also want to keep away from sexual activity in a situation where the husband has contracted an infectious, sexually transmissible disease, such as HIV; her refusal in such a situation may emanate not only on account of concern for herself but also, to protect the progeny which may result from such communion. These are aspects which only exacerbate the lack of autonomy and sexual agency which stands embedded in MRE,”
Married woman’s right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow…It would be tragic if a married woman’s call for justice is not heard even after 162 years, since the enactment of IPC. To my mind, self-assured and good men have nothing to fear if this change is sustained”,
Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia.
Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgements which would result in an act, otherwise not an offence, being rendered an offence.
A court cannot legislatively stipulate the punishment for the offence. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence.
“If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger,”
“Any such contention would, at the very least, be purely presumptive in nature. This aspect is important. As Mr Tushar Mehta, learned Solicitor General correctly submitted, the impugned Exception, and its evisceration from the statute book, are not issues of merely legal import; the issue has wide societal and sociological ramifications, which cannot be ignored. The perception of the teeming millenia of this country cannot, therefore, be regarded as an illegitimate consideration, while examining the need, or otherwise, to retain the impugned Exception in Section 375 of the IPC.”
“The daughter born of such an act would, if the petitioner’s submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling. Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute. The sequelae, were the submissions of the petitioners to be accepted, are mind boggling,”
In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.”