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How HC judges differed on marital rape: One said ‘rape is rape’, other said spouses’ sex ‘sacred’

Justices Rajiv Shakdher & C Hari Shankar delivered split verdict on exception to Section 375 of IPC, which exempts husband from prosecution for forcing wife to have intercourse.

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New Delhi: In the Delhi High Court’s split verdict on marital rape, while one of the judges observed that “the offence of rape remains the same irrespective of who the offender is”, the other stated that “sex between a wife and a husband is…sacred”.

The two-judge bench comprising Justices Rajiv Shakdher and C. Hari Shankar delivered the split verdict Wednesday, on petitions challenging the constitutional validity of an exception in the Indian Penal Code (IPC) that exempts a man from being prosecuted for forcibly having sexual intercourse with his wife. While Justice Shakdher favoured striking down the exception, Justice Shankar wanted to uphold it as constitutional. 

Both judges, however, granted a certificate of leave to appeal to the Supreme Court directly, opining that the case raises a “substantial question of law” which requires a decision from the apex court. 

The judgment came on petitions filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, and two individuals, challenging the constitutional validity of the second exception to Section 375 of the Indian Penal Code (IPC). 

Section 375 of the IPC defines the offence of rape, but carves out an exception for sexual intercourse between a married couple. “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” the exception reads. 

In a 2017 verdict, the Supreme Court had read down this exception to increase the age of consent for sexual intercourse within marriages from 15 years to 18 years under this exception. However, that case dealt exclusively with cases of child marriage, and not with the wider issue of marital rape.


Also Read: 82% women in India able to refuse sex to their husbands, finds govt’s family health survey


The two opinions

In his 193 page-long opinion, Justice Shakdher began his analysis with the history of the exception to show that it is “steeped in patriarchy and misogyny”. 

“Sex worker has been invested with the power to say ‘no’ by the law; but not a married woman,” he asserted. The judge ruled that the exception violates Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 19(1)(a) (freedom of speech and expression) and 21 (right to life and personal liberty) of the Constitution.

“…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 dehumanising,” he observed.

Justice Shakdher emphasised that “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,” he added. 

However, in the next 200 pages of the judgment, Justice Hari Shankar stated that a “simple issue” has been made “unreasonably complex, and has occupied weeks of precious court time”.

While he agreed that “sexual autonomy of women is non-compromisable”, he said “every incident of non-consensual sex of a man with a woman is not rape”. He emphasised on how he felt that the petitioners had “completely failed to accord, to the marital relationship, the status and importance it deserves”. 

“Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred,” he added.

Justice Shankar asserted that “marriage is neither a playground, nor a gladiatorial arena. It is the most pristine institution of mankind, on which the entire bedrock of society rests”. 

He opined that according to the legislature, “an allegation of rape should find no place in a relationship of marriage”. Sex, he said, “remains a conjugal obligation”.

‘Call out rape for what it is’

Justice Shakdher’s opinion examined the language used in Section 375. He observed that every female victim, except a married woman, has the right to initiate criminal proceedings against the offender if she is subjected to forced sexual activity.

He then went on to opine that this classification between married and unmarried women is “unreasonable and manifestly arbitrary” and violates the equality clause under Article 14 (equality before law) of the Constitution.

“Article 14 of the Constitution not only guarantees that the state shall not deny to any person equality before the law, but also guarantees that every person within the territory of India will have equal protection of the laws. MRE (Marital Rape Exception) with one stroke deprives nearly one half of the population of equal protection of the laws,” he explained.

Justice Shakdher also rejected the argument that a married woman can take recourse to other provisions like Section 498A of the IPC, which criminalises subjecting a woman to cruelty, and the Protection of Women from Domestic Violence Act, 2005. These arguments, he said, “hedge around the main issue, which is, to call out the offence of rape for what it is”.


Also Read: ‘Marital rape exception not absolute’ — Karnataka HC refuses to quash rape case against husband 


‘Relationship of equals’

Justice Shakdher also rejected the contention that the exception should be upheld because there was a possibility of false cases being lodged. He asserted that the courts in India are “fully equipped to deal with false cases”, and that the “lodgement (sic) of false cases is not confined to rape, it permeates, to an extent, to other provisions of IPC as well”.

The judge went on to rule that the exception also violated Article 21 (right to life and personal liberty) of the Constitution. He observed that “modern-day marriage is a relationship of equals”. He also rejected the argument that prosecution of a husband would invade into a married couple’s private space, calling it “morally suspect and legally untenable”.

He ruled that the exception also violates Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) of the Constitution “since it triggers discrimination against women based on their marital status”, as well as Article 19(1)(a) (freedom of speech and expression), ruling that “the guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy”.

Justice Shakdher ended his opinion extending hope to the petitioners, saying, “To the petitioners’ and their ilk, I would say it may seem that you plough a lonely furrow today, but it will change, if not now, some day.”

‘The taint of rape’

Justice Shankar felt that the petitioners had “completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband”.

He acknowledged that “marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined”. He, however, refused to accept the contention that the provision encourages or permits non-consensual sex by a husband with his wife.

He went on to compare a situation where a stranger has forcible sexual intercourse with a woman, with a situation in which a husband has forcible sexual intercourse with his wife. 

“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 then observed.

He therefore rejected the contention that the exception violates Article 14 of the Constitution, observing that the law correctly creates a distinction between sexual relations in a marriage, and sexual relations between strangers. 

Looking at language used in the exception, the judge went on to add that: “The taint of rape, in other words, according to the legislature, should never discolour a marital relationship between man and woman.”

“It cannot be forgotten that a fixation of the label of ‘rapist’ attaches, to a man, a stigma that lasts to his dying day,” he added.

On consent

Justice Shankar also rejected the contention that the exception in the IPC compromises on the wife’s right to consent, observing that the exception “does not treat the offence as condonable; it merely disapproves the use of the ‘rape’ vocabulary in the context of marital sexual relations.”

He pointed out that the woman has other remedies under provisions like Section 498A of IPC. He further said that even if the exception is found to be unconstitutional, the court would still not be able to strike it down because doing so would create a new offence. Courts have ruled that only the legislature can create a new offence.

The judge went on to highlight that if a wife alleges lack of consent, “it may conceivably become extremely difficult, if not impossible, for the husband to discharge the onus cast on him…to prove existence of consent, as the act has taken place within the confines of the bedroom”.

Asserting that “the entire bedrock of society rests” on the marital institution, Justice Shankar observed: “Absent a subsisting and surviving marriage, neither would learned counsel have been here to argue the matter with the proficiency they exhibited, nor would we be here to pass judgment thereon.”

(Edited by Gitanjali Das)


Also Read: ‘Have 50 nations got it wrong?’ Delhi HC asks as it looks into IPC exception for marital rape


 

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