Written By – Shruti Bharti
Merely because of the institution of marriage, should a husband be permitted to act with impunity to assert his marital right to non-consensual or undesired intercourse with his wife?
Recently, this question has been raised in a clutch of petitions filed before the Delhi High Court seeking to strike down the exception of Section 375 of IPC.
What is Marital Rape and its exception under Section 375
Marital rape can be defined as the act of forcible sexual intercourse between a man and his wife against her will, carried out under the threat of physical violence, resulting in mental anguish and suffering for the woman. Simply put, it refers to rape committed when the perpetrator is the victim’s spouse.
Section 375 of the Indian Penal Code (IPC) deals with the offense of rape and Section 376 delineates the punishment for the same. While Section 375 encompasses a wide array of sexual activities to be falling within the scope of rape, it grants an exception clause to the husband engaged in forceful and non-consensual sexual intercourse.
Exception 2 of Section 375 leaves no recourse for a woman who has been raped by her own husband. It reads: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
In 2017, the Supreme Court ruled in Independent Thought vs. Union of India and Anr. criminalized sexual intercourse with a minor wife who has not attained the age of 18 so as to harmonize it with the provisions under POCSO and fundamental rights.
Why has been the matter taken up by the Delhi High Court recently?
Several petitions have been filed before the Delhi High Court challenging the constitutional validity of the exception clause under Section 375 of IPC. The petitioners include the RIT Foundation, the All-India Democratic Women’s Association (AIDWA), and a survivor of marital rape. Currently, a division bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar are hearing arguments from both sides and the matter is yet to be adjudicated upon.
The amicus curiae, Senior Advocate Rajshekhar Rao, appearing in the matter has argued in favor of the criminalization of marital rape. He asked whether this exception must be retained when it repeatedly dehumanizes the very existence of a woman every day.
He says “every day this act remains in the books, there is a section in the population that is denied the opportunity to call a rape as rape.”
Another Advocate Raghav Awasthi, arguing on the behalf of petitioners raised the contention that non-criminalization of marital rape is a violation of the fundamental right of Article 21 guaranteed by the constitution to the married woman. Stating that there exists no intelligible differentia between a rapist and a married man who forces himself on his wife, he said,
“Essentially, what is being argued here is that one set of rapists should be treated differently from another set of rapists just because they happen to be married to their victims.”
On the other end of the spectrum, opposing the batch of petitions were two intervenors appearing before the court. One of them, Advocate Raj Kapoor, argued that the Parliament retained the Exception keeping in mind the overall view of Indian society, statutes, and punishments.
He further argued that as there is a reasonable classification based on the nexus with the object sought to be achieved, the exception could not be termed as violative of Article 14 of the Indian Constitution.
What has the government argued on the issue?
The Delhi government has argued before the court that marital rape is already covered under Section 498A of the Indian Penal Code, which allows a wife to bring a case against her husband for “cruelty.”
To which Justice Shakdher said, “At least I find it difficult to appreciate that since she has other remedies, it is not violative of Article 21. Imagine a woman is on her menstrual cycle and she refused to have sex but the husband still forces himself and brutalizes her. Isn’t it an offence?”
The response from the Central Government did not imply a shift in the position either. It has informed the court that marital rape cannot be criminalized until the Central Government consults with all the stakeholders. The government also informed the court that comprehensive amendments to criminal law are being considered rather than ‘piecemeal’ changes, and asked the petitioners to send their suggestions/submissions to the Ministry.
Solicitor General Tushar Mehta issued a brief statement on behalf of the Union government, saying that the government is considering a “constructive approach” in the matter and has invited suggestions from various stakeholders.
Recommendations on Criminalization of Marital Rape
The Justice (Retd.) J. S. Verma Committee, constituted by the UPA administration in the aftermath of the brutal gang rape of a paramedic student in 2012, proposed criminalizing marital rape. The objective of this committee was to propose “possible amendments to the Criminal Law to provide for quicker trial and enhanced punishment for criminals committing sexual assaults of extreme nature against women”.
The Verma panel proposed that “the exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.
Based on some of the suggestions of this Committee, the Criminal Law (Amendment) Act was passed in 2013 but the suggestion to remove the exception of rape was left unamended. A Parliamentary Standing Committee on Home Affairs headed by Venkaiah Naidu said, “the entire family system will be under great stress” should marital rape be criminalized.
Moreover, in 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) had recommended that the Indian government should criminalize marital rape.
It is time that India shreds the “implied consent” mindset that favors the irrefutable presumption of consent to sexual intercourse is thought to exist when a man and woman enter the institution of marriage. The autonomy of a woman must take precedence above the argument that the exemption would defend the institution of marriage.
According to the Delhi High Court, consent cannot be presumed even for sex workers, hence it is ludicrous to presume consent for a woman only because of marriage. Now, it remains to be seen whether Delhi High Court strikes down the ‘marital rape’ exception of Section 375 or not.