The All India Democratic Women’s Association (AIDWA) is disappointed that the Delhi High Court has given a split verdict in a petition filed by it to declare marital rape unconstitutional and unjust and violative of a married woman’s right to equality and her right to sexual autonomy and dignity. At present the law relating to rape exempts a man from being prosecuted if he commits rape on his wife. This has been done by carving out an exception 2 in section 375 IPC (Rape) which decriminalizes marital rape and states that “sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape”. In an earlier judgment, Independent Thought, the Supreme Court had raised the age of a wife who could prosecute her husband for rape from 15 to 18 years. Thus if a man forces sexual intercourse on his wife without her consent and if she is an adult above 18 years of age it would not be rape. The law granting exemption to a husband was enunciated by the British in 1860 when the Indian Penal Code was enacted and is based on the old English doctrine of coverture under which the wife was treated as a mere property of the husband and his subordinate and he could not be prosecuted for raping and sexually abusing her.
The AIDWA lawyer had pointed out that the marital rape exception is archaic and is based on an outdated notion of marital relationships that has no place in a just constitutional order. She had also pointed out that it is the moral right of a woman to refuse unwanted, forcible sexual intercourse and that a wife’s right to say no should be respected and that marriage is not a universal license to ignore consent. She quoted NFHS 4 statistics to show that 83 per cent married women between the ages of 15 and 49 were victims of sexual violence but 99.1 per cent cases are not even reported. Justice Shakdher’s judgment notes that old archaic notions of a wife’s subordinate and secondary status have changed and women are now considered to be equal partners in a marriage and have to be treated with respect and dignity and as individuals with sexual autonomy, bodily integrity and agency. It was pointed out that the exemption for marital rape had been done away with in 50 countries in the world and India should follow suit.
AIDWA has been campaigning for recognition of Marital Rape as rape since the 90s and had petitioned successive Governments to get rid of exception 2 in the rape law which exempts marital rape. Finally the present petition was filed more than seven years ago. Though the rape law was amended in 2013 to enhance women’s rights, the marital rape exemption remained.
In the meanwhile, as Justice Shakdher remarked, half the female population had no recourse to a rape law which could prosecute and punish their husbands if they forced even brutal sex on them. AIDWA agrees with the reasoning of Justice Rajiv Shakdher who struck down the rape exception as unconstitutional on the grounds of Article 14, Article 15, Article 19 and Article 21 in the fundamental rights chapter of our Constitution.
He held that the marital rape exception was violative of article 14 of the Constitution as it deprives half the population of the “equal protection of the Laws” which they are entitled to under this Article and that differentiating between married and unmarried women was unreasonable and unjust. He highlighted that every woman, including a live-in partner can allege rape if she is subjected to forced sexual activity since willingness and consent are what distinguishes a lawful from an unlawful activity. However, a married woman, under the present law cannot say no even if she is unwell or the husband is suffering from a communicable disease. She also cannot allege rape even if she is subjected to repeated forced sex. The Hon’ble Judge pointed out that there are various special sections in the Code of Criminal Procedure Code meant to protect victims and survivors of rape which are not available to married women who had been raped.
Interveners in the petition, placed several arguments opposing the petition. To the argument advanced by them that the state has a legitimate interest in preserving marriage, Justice Shakdher said that if marriage itself becomes a tyranny the State cannot have any plausible legitimate interest in preserving it. The dissenting judgment however agreed with the argument that the Marital rape should not be criminalized as it would destabilize the institution of marriage. Another argument advanced was that a wife could always prosecute under S498A of the IPC which defines cruelty to a wife. However Justice Shakdher pointed out that this section does not address Rape and is a distinct and different offence. He reasoned that similarly the Protection Against Domestic Violence Act which also defines sexual violence as violence is essentially a civil law as opposed to a criminal legislation and provides remedies like Injunctions against the husband and protection orders in cases of domestic violence including monetary relief that she may need.
Another apprehension expressed was the usual one that women would file false cases of rape and the law ‘was likely to be misused’. Organisations working with women rights know how false this propaganda is. Women in India, do not have any stake in breaking marriages as they are likely to lose more than the man in terms of social and economic security. Justice Shakdher remarked that false cases extend to other offences in IPC as well and the law and Courts deal with these cases and this cannot, in any case, be a reason for not recognizing Marital Rape. It was also argued that law should not enter the private sphere of home and was rightly rebutted by the argument that “the distinction between (a) Public and Private space has no relevance when the rights of women are infringed” and that (b) “familial structures cannot be regarded as private spaces when constitutional rights are violated”. Justice Shakhder finally pointed out that “the right to withdraw consent at any given point of time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being” and thus the present marital rape exemption to husbands violates the right to life in Article 21 of the constitution. The Judge further held that the exception further violates Article 19 (1)(a) [Freedom Of Expression] of the constitution as this gives a right to a woman to assert her sexual agency and autonomy.
The dissenting judgment of Justice Hari Shankar however held that the opponents of the marital rape exemption failed to accord to the marital relationship the status and importance it deserved and that sex between a wife and husband was sacred. He stated that if a husband is regarded as a rapist “even if he has on any occasion had sex without her consent” it would be “completely antithetical to the very institution of marriage” In sharp contrast to Justice Shakdher’s observation that “irrespective of who the perpetrator is, forced sex mars the woman victim physically, psychologically and emotionally”, Justice Hari Shankar felt that “it is unrealistic for a woman to feel the same outrage as she would with strangers”.
AIDWA will appeal to the Supreme Court against this judgment and against the marital rape exemption, an archaic law which came into being 160 years ago. This law seeks to retain a woman’s subordinate position in marriage and states that on entering a marriage she can do nothing if she is subjected to forced sex. AIDWA hopes that the SC will re-examine and get rid of this unfair and unjust provision which denies a wife certain basic rights over her body.
Malini Bhattacharya
President
Adv Kirti Singh
Legal Advisor
Mariam Dhawale
General Secretary
