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Rape by spouse more damaging: Colin Gonsalves in Delhi High Court on marital rape

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Senior Advocate Colin Gonsalves, who has commenced his submissions in rejoinder on the issue of marital immunity in rape, told the Delhi High Court that rape by one’s spouse has even more “damaging consequences” for a woman than rape by a stranger.  

The Special Bench comprising Justice Rajiv Shakdher and Justice C. Hari Shankar was on Friday hearing a bunch of PILs filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association and two individuals, who sought to strike down the marital rape exception on the grounds that it discriminated against married women, who were sexually assaulted by their husbands.

Gonsalves, who represents a victim of marital rape, began his submissions by referring to a United Kingdom Law Commission Report wherein the issue of rape within marriage was reviewed and it was observed that- “it is by no means necessarily the case that non-consensual intercourse between spouses has less serious consequences for the woman, or is physically less damaging or disturbing for her, than in the case of non-consensual intercourse with a stranger.”

“It is well recognised that unwanted sexual intercourse can be a particularly repellent and abhorrent experience for a woman: that is one main justification for the existence of the offence of rape. We see no reason why a wife cannot say that she feels that abhorrence for such intercourse with her husband, whether or not she has willingly participated on previous occasions,” the report read further.

He stressed that a perusal of the report indicates that forceful sexual intercourse by a man with his wife was not recognized as a “right” by the Law Commission. It also indicates that spousal rape can have even more damaging consequences for the woman as compared to rape by a stranger. 

He highlighted some of the concerns that have been raised concerning striking down of the provision, which are as follows-

  1. That rape and marital rape are fundamentally different categories of rape.
  2. That proof is more difficult in cases of marital rape than in cases of non-marital rape.
  3. That should marital rape have, as a necessary component, injuries.
  4. That marital rape is somehow less serious than non-marital rape. There ought to be lesser punishment.
  5. That women will misuse the provision. 
  6. That settlement between spouses will be impossible. 
  7. That is there a right to have sex intercourse with your spouse.

Addressing these concerns, he submitted that at this stage it is premature to anticipate circumstances which would emerge once the provision is struck down, and would be dealt with in due course of time on account of development of case laws depending upon facts and circumstances of each case. “Once the declaration of unconstitutionality is made, the task of the High Court is done. The place where the disputes regarding marital rape will be adjudicated will then shift to the Trial Courts, where facts specific context will bring enriched legal meaning to the critical legal issues, particularly the meaning of the word ‘coercion’ or the meaning of the word ‘consent’”, he said. 

While arguing that once the exemption is set aside, it is within the domain of the Parliament to unravel the complex issues arising out of striking the provision, he added thus- “The High Court is only the institution of first instance. It cannot solve all the problems in one go. It takes the first step towards addressing the historic and extreme injustice that has been done to married women for centuries by doing away with the hateful exception granting all husbands immunity in respect of what has been characterized the most heinous crime. After this is done Parliament will be called upon to apply its collective minds as to how, if at all, the generic definition of coercion and the generic definition of consent has to be elaborated by making law.”

At this point, Justice Shankar pointed out that this is rather an “astonishing” argument inasmuch as it focuses on enlarging the scope of the offence without dealing with relevant concepts surrounding the core issue at hand. “We should enlarge the scope of the offence, we should not even examine what is consent, we should not see what is coercion, we should not see what is the difference, we should not see what are the punishments. We strike it down and thereafter let the jurisprudence to develop. Is that what the constitutional court is supposed to do in a case like this?”- he remarked.

Gonsalves would continue advancing his submissions on Monday at around 3:45 pm.

Earlier, the Union Government, informed the Court that it is undertaking an effective “consultative process” on the issue and in thereby, urged the court to defer hearings on the instant petition as the subject-matter involved has “far-reaching social implications”. 

The Centre, in its latest affidavit, had stated that the issue needs a holistic view, and thereby before reaching any conclusion, a consultative process with all stakeholders including the State Governments, on several aspects, is needed to assist the Court meaningfully.

 “Any assistance of the Central Government can be meaningful and effective only after search consultative process with the participation of all the stake holders. Absence of any such consultative process by the executive/legislature, may result in some injustice to one section or the other,” the affidavit reads.

Furthermore, the Ministry of Home Affairs promised to provide a time-bound schedule within which the government will carry out such consultative process.

Previously, the Centre had opposed the pleas stressing that India cannot blindly follow the West and the provision is likely to be misused.

Last week, Solicitor General Tushar Mehta sought time from the Court to reach a conclusion, stating that the Government has committed to take a “constructive approach” in the matter.

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