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The first country to criminalize marital rape was the Soviet Union in 1922. So Marital rape or spousal rape is the act of sexual intercourse with one’s spouse without their consent that is an unjust yet not uncommon way to degrade and dis-empower women. India is one of the 36 countries in the world where marital rape is not criminalized. Why is this? Let’s understand the issues revolving around it. Domestic violence in India is an entrenched problem, and it has only been exacerbated in recent years. As per the National Crime Records Bureau’s (NCRB) ‘Crime in India’ 2019 report, about 70% of women in India are victims of domestic violence. One such manifestation of this domestic violence is marital rape.

Why in news?

Delhi High Court passed split verdict on Criminalizing Marital Rape

What law says about Marital Rape?

  • The definition of rape codified u/s 375 of the Indian Penal Code (IPC) includes all forms of sexual assault involving non-consensual intercourse with a woman.
  • Non-Criminalization of marital rape in India comes from Exception 2 to Section 375 that says ‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape’.
  • This law shows that a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.
  • This marital rape concept in India seems like the epitome of what is known as an “implied consent”. Marriage between a man and a woman here implies that both have consented to sexual intercourse and it can’t be other way around.

Background

Doctrine of Coverture: Non-Criminalized nature of Marital rape emanates from the British era. The Marital rape largely influenced by and derived from this doctrine of merging the woman’s identity with that of her husband. This doctrine supports implied Consent Theory. At the time the IPC was drafted in the 1860s, a married woman was not considered an independent legal entity. As per this doctrine an unmarried woman had the right to make contracts on her property whereas a married did not.The marital exception to the IPC’s definition of rape was drafted on the basis of Victorian patriarchal norms that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.”

Marital Rape was not considered to be crime in Britain until the 1991 landmark Judgment i.e. R v. R wherein House of Lords stated, ‘Nowadays it can’t seriously be maintained that by marriage a wife submits herself irrevocably to sexual intercourse in all circumstances’.

What are the Issues in the RIT Foundation v. Union of India, delivered on Mar 11, 2022?

Whether or not Exception 2 appended to Section 375 of the Indian Penal Code, 1860 should remain on the statute?

Let’s see the brief summary of the observations made by both the judges on various facets of the challenge in their respective judgments:

Justice Rajiv Shakdher’s opinion:

Constitutional viability of classification between married and unmarried women in context of Article 14 of Indian Constitution

Justice Shakdher observes at para 137.1:

“The classification, in my opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape. A ‘chaste woman’ or a young girl – is more likely to be considered a ‘victim’; but not a married woman. A prior sexual relationship is regarded as a reasonable defence because consent is assumed; but in the case of a married woman, it is not even put to test. Sex- worker has been invested with the power to say “no”; by the law; but not a married woman. In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease or she is herself unwell finds no space in the present framework of rape law

Violation of Article 21 of the Constitution:

Marital rape exception violates Article 21 of the Constitution as the offence of rape and injury caused remains the same irrespective of who the offender is. 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 this 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. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally.

In the State of Karnataka v. Krishnappa, the Supreme Court held that sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. In the same judgment, it held that non-consensual sexual intercourse amounts to physical and sexual violence.In Suchita Srivastava v. Chandigarh Administration, the Supreme Court equated the right to make choices related to sexual activity with rights to personal liberty, privacy, dignity, and bodily integrity under Article 21 of the Constitution.

Violation of Article 15 and 19(1)(a) of the Constitution:

The marital rape exception discriminates within the same sex, solely on the ground of their marital status. It violates the guarantee given by the Constitution concerning freedom of expression to married women.

On Conjugal expectations:

Conjugal expectation can’t be equated to an unfettered right to have sex without consent of the wife. When marriage is a tyranny, the State cannot have a plausible legitimate interest in saving it. In this regard Justice Shakdher observes at para 147:

“Conjugal expectations, though, legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition.”

Not labeling non-consensual sex as rape to save institution of marriage:

The opinion rejects the argument to save the institution of marriage to make a space for the non-consensual sex and observes at para 148 as:

‘The edifice on which familial structure is erected can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other’s yearning for physical and mental autonomy….State appears to have stopped short of conferring the right on a woman to call out an offender who happens to be her husband when he subjects her to rape. 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.

Creation of new offence:

If the Exception of Section 375 is struck down, it would only extend the ambit of the existing law to offending husband. A new offence/new crime would perhaps have been created if the ingredients of the offence had changed which is no one’s case.

Justice C Hari Shankar’s Opinion:

Intelligible differentia:

Intelligible differentia exists between a married and an unmarried woman. Once that is established, the scope of the enquiry by the Court ends there. Justice Shankar observes at para 143 as:

“It is not open to a court to examine further whether the object of the legislation is sufficient to justify the differentia. A writ Court, venturing into that territory, would clearly be exceeding the boundaries of its authority under Article 226. Once the legislature adopts the view that there is an object X that it seeks to achieve, which is legal, and that, in order to achieve that object, it seeks to distinguish between A and B, if the distinction thus drawn between A and B has a rational nexus with object X, the legislation is ipso facto intra vires. The Court can’t tell the legislature that “though you feel that treating non-consensual sex between husband and wife as rape would threaten the marital institution, we do not think so.”

Negation of woman’s consent in Section 375 IPC:

Justice Shankar observes that the mere fact that if the wife, on a particular occasion, were not to grant consent for sex with her husband, and yet the husband compels her to have sex, the act committed by him would not qualify as ‘rape’ within the meaning of Section 375 cannot, be regarded as disregarding the wife’s right to grant or refuse consent. There is no inflexible legal principle that every act perpetrated by one human being on another has necessarily to invite criminal consequences.

The Exception retains the wife’s decisional autonomy in the matter. She still has the right to either say no, or, “a joyful yes”.

Section 375 exception when tested against Article 14:

In regard to the exception hitting article 14, the opinion notes that if a provision is to be struck down as violative of Article 14 on the ground that it is arbitrary, the arbitrariness must be in relation to the manner in which it creates a distinction between persons or things who appear, otherwise, to be similarly situated; What may appear to be arbitrary to one may not appear arbitrary to another – the present case being a stellar example; If arbitrariness alone is to be the basis, the legislation would become subject to the vagaries of judicial thinking; So long as justice is administered by judges, and not automatons, arbitrariness per se would, therefore, be too slender a thread on which to hang a statutory provision, in order to test its constitutionality.

Creation of offence:

Justice Shankar notes at para 187 that striking down the Exception will lead to creation of an offence along with the presumption of constitutionality applies. At para 196 Justice Shankar puts his argument as:

To my mind, the proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional. In other words, if a provision is found to be unconstitutional, the Court may strike it down provided, by doing so, it is not creating an offence. If, by its judgement, the Court creates an offence, there is an absolute proscription, even if the provision is otherwise unconstitutional. Judges sitting in courts cannot, on the basis of arguments of counsel, howsoever persuasive, create offences, or pass judgments which would result in an act, otherwise not an offence, being rendered an offence. If the Exception was to be struck down, court would make, ipso facto, the punishments envisaged by Section 376, applicable to a husband, where the legislature never intended these punishments to apply to him.

Conclusion

Thus it is understood from the verdict that Justice Rajiv Shakdher has held that marital rape exception violates Articles 14, 19 and 21 of the Constitution & Justice C Hari Shankar has the opinion that the challenge to the provision has no legs to stand on. The matter is yet to be buried as either the Full Bench of the Delhi High Court or the Supreme Court will have the opportunity to examine the issue.

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– Bablu Kumar Sharma** India is a democratic country and follows a parliamentary system of governance. Legislatures are elected by the people either directly or indirectly. One Nation One Election. read more…

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