A two-judge bench of the Delhi High Court delivered its much-awaited verdict on the constitutionality of marital rape last week. The expression ‘disappointed, but not surprised’, would perhaps succinctly encapsulate the reaction of most who had any semblance of expectation going into the judgement.
Prior to engaging with the verdict and its implications, it would perhaps be apposite to briefly contextualise marital rape and its jurisprudential history. In India, the principal statutory provision currently enabling the perpetuation of marital rape is Section 375 of the Indian Penal Code, 1860. Section 375, which criminalises as rape any and all forms of sexual activity against either the will or consent of the victim, contains a caveat in Exception 2 to Section 375, which states that sexual intercourse by a man with his own wife would not amount to rape. Known as the Marital Rape Exception, this provision provides the perpetrators of marital rape blanket immunity from any prosecution.
Following the conclusion of a prolonged hearing wherein the constitutionality of this exception was challenged, the Court delivered a split verdict, with Justices Ravi Shakder and Hari Shankar authoring diametrically opposite judgments. While Justice Shakder’s judgment, declaring marital rape unconstitutional, is undoubtedly laudatory and brooks little further discussion, Justice Shankar’s verdict upholding its constitutionality demonstrates an understanding of consent that is lacking in sensitivity, empathy and nuance. It throws a proverbial spanner in the works, and this piece aims to engage with his judgment and highlight the lacunae thereof.
With regard to his argument that the criminalisation of marital rape would somehow negate the sanctity of the institution of marriage, it is as ridiculous as it is paradoxical. It fails to grasp the crucial fact that it is the act of rape within a marriage that destroys it, and not its criminalisation. The moment the husband forces his wife to yield to his basest physical desires, the sanctity of that marriage is automatically undermined irrevocably. Apart from physical suffering, the mental trauma induced would vitiate the element of trust that marriages are largely premised upon. This complete loss of trust in her spouse would have lifelong consequences for the victim in terms of her self-worth and self-validation. An act of marital rape then denudes the woman not only at a literal physical level but also at a metaphorical level, since it robs her of her agency.
Also read: How HC judges differed on marital rape: One said ‘rape is rape’, other said spouses’ sex ‘sacred’
While the argument qua misuse is not unfounded, it is not a tenable one in the present context. While the misuse of penal provisions vis-a-vis rape and other sexual offences has been well-documented, it would be disingenuous to suggest that rape laws be abolished simply because they contain scope for potential misuse. The raison d’etre of penal law is to remedy a wrong while ensuring that justice is meted out following due process. By extension, the same applies to the question of marital rape. While it is undoubtedly true that misuse would result in a miscarriage of justice, the number of wrongly prosecuted individuals would be few and far between compared to the thousands of women who endure untold spousal oppression. Instead, it is the combined responsibility of the judiciary, the legislature, and the executive to impose a more stringent system of checks and balances to ensure that wrongful convictions are minimised, while simultaneously liberating women from marital rape.
The Delhi High Court has, in effect, wasted 400 pages on a verbose and inconclusive judgment which eventually helps no one. This case will invariably go to the Supreme Court, and thereafter possibly be referred before an even larger bench, with the possibility of a split verdict appearing yet again, given the polyvocal composition of the apex court. While the apex court’s dubious track record in such ‘sensitive’ matters is anything but reassuring, one can only hope that as the final guardian of individual rights, it will do its constitutional duty. Ever since the Indian Penal Code came into force 162 years ago, married women in this country have suffered silently at the hands of their husbands. One can only hope that they are not allowed to suffer for another 162 years more.
The author is a student at West Bengal National University of Juridical Sciences, Kolkata. Views are personal