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When Marriage is a Tyranny…

A split verdict by the Delhi High Court on criminalisation of marital rape has led this issue to the apex court. Should the common law understanding of marriage be judicially discarded as in the UK?

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With the Delhi High Court recently delivering a split verdict on a bunch of pleas seeking criminalisation of marital rape in the country, the debate on the issue has once again gained momentum. The matter has now reached the top court.

Justice Rajiv Shakdher, who headed the division bench dealing with the issue, struck down as unconstitutional Exception 2 to Section 375 of the Indian Penal Code, 1860, for being violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution. On the other hand, Justice C Hari Shankar rejected the plea to criminalise marital rape on the ground that the provision does not violate Article 14, but is rather based on an intelligible differentia.

The provision granting immunity to the husband from unwilling sexual intercourse with his spouse is enshrined under Exception 2 to S.375 (known as “Marital Rape Exception” or MRE), according to which sexual intercourse by a man with his wife, the wife not being under 18 years, is not rape. The exception was carved out in order to favour the conjugal rights of the husband as reflected in the initial draft of the penal code framed by Lord Thomas B Macaulay in 1837. It was based on the common law principle enshrined in the Doctrine of Coverture and Implied Consent, as per which the legal rights of a woman were subsumed by her husband after marriage and by entering into marriage, a wife was considered to have given irrevocable consent to participation in sexual acts with her husband.

The genesis of marital rape exception is rooted in the doctrine expounded by Sir Matthew Hale, according to which a husband can never be held guilty of raping his lawful wife, “for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract”.

Aggrieved by the unreasonable classification that affected the rights and dignity of a woman, a batch of petitions were filed before the Delhi High Court by NGOs RIT Foundation, All India Domestic Women Association (AIDWA) and two individuals on the issue of declaring Exception 2 to Section 375 IPC as unconstitutional.

Senior Advocate Colin Gonsalves, representing one of the petitioners, argued that decriminalising marital rape on the ground that by entering into matrimony, a woman consents to a continued sexual relationship from which she cannot retract is manifestly arbitrary inasmuch as there exists no rationale for distinguishing between those women who are married as against those who are unmarried.

 Advocate Karuna Nundy, representing RIT Foundation and AIDWA, contended that provisions of law that postulate the institution of marriage that subverts equality are manifestly arbitrary and bad in law. Applying the inversion test, she asserted that the decision of the apex court in the Independent Thought case was a binding authority for the proposition that a woman cannot be treated as a commodity and that she has every right to say no to sexual intercourse with her husband. She submitted that the pre-constitutional object of marital rape exception to protect the conjugal rights of a husband had undergone a drastic change today with post constitutional amendments focusing on protecting women’s right to bodily integrity and securing sexual autonomy.

Senior Advocates Rebecca John and Rajshekhar Rao who were appointed as amicus curiae during the course of hearings to assist the Court in the matter, supported the claim for striking down the provision. John submitted that the common law understanding of marriage, which was engrafted in the IPC, should be judicially discarded as has been done in the UK, the country from which the common law doctrine of coverture and implied consent was borrowed in the first instance, according to which the legal rights of a woman were effaced after marriage.

Rao contended that classification that the provision seeks to create based on marital status leads to an anomalous situation inasmuch as it gives a married woman lesser protection against non-consensual sexual intercourse by her husbands than against strangers.

Two intervenors, Men Welfare Trust and NGO Hridaya, opposed striking down the impugned provisions.

Advocate J Sai Deepak, representing Men Welfare Trust, while clarifying that the Trust was not opposed to the criminalisation of spousal sexual offences, stressed that the legislature by creating such a legal ecosystem, had, in effect, criminalised non-consensual sex between spouses without terming it rape. He argued that the court is a sub-optimal forum to deal with the issue at hand considering a variety of perspectives that are not only legal but also social and cultural, which can only be addressed by the legislature.

 Advocate RK Kapoor, appearing for Hridaya, supported Deepak’s contention, and said that the provision which has remained on statute despite repeated amendments to the Code reflects the wisdom or motive of the Parliament and the same cannot be subjected to judicial scrutiny. He emphasised that marriage is a social institution and that marital rape exception has the potential to destroy this institution.

Examining the firewall that is created via the marital rape exception vis-à-vis an offending husband who subjects his wife to a non-consensual sexual act, Justice Shakdher observed that the classification is manifestly arbitrary and unreasonable 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. “The rape law as it stands at present is completely skewed insofar as married women are concerned. To a woman who is violated by her husband by being subjected to the vilest form of sexual abuse (i.e., rape) it is no answer to say that the law provides her other remedies. When marriage is a tyranny, the State cannot have a plausible legitimate interest in saving it. In every sense, MRE, in my view, violates the equality clause contained in Article 14 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 with one stroke deprives nearly one-half of the population of equal protection of the laws,” he said.

On the arguments of “conjugal expectation” of sexual communion during subsistence of a valid marriage and “preservation of the institution of marriage”, he observed that individual autonomy of a woman has to be respected at all times.

“Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals,” he said while holding the provision to be violative of Article 21 of the Constitution for marital rape not just leaves physical scars but also deeper scars on the psyche of a woman.

Talking about Section 376B IPC and Section 198B of the Code of Criminal Procedure, 1973, which mandates a lower minimum sentence for a third category of perpetrators, i.e. separated husbands, he held the provision to be “incongruous” on the ground that “a rapist remains a rapist irrespective of his relationship with the victim”.

“A married woman’s right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long. Deifying women has no meaning if they are not empowered. They are our equal half; some would delightfully say our better half. It is time that all stakeholders bite the bullet. It would be tragic if a married woman’s call for justice is not heard even after 162 years, since the enactment of IPC,” he said while summing up his opinion.

 The opinion of Justice C Hari Shankar on the issue, however, differs, as per whom the impugned exception does not violate Article 14 and is based on an intelligible differentia. Also, it does not infringe on Articles 19(1)(a) and 21 and was, therefore, not unconstitutional. He noted that the challenge in the petitions is thoroughly misconceived for it is predicated on the premise that every act of non-consensual sex by a man with a woman is rape. “Just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape, howsoever much learned Counsel for the petitioners might want it to be. The foundation of the petitioners’ case is, therefore, with all due respect to learned Counsel, fundamentally flimsy,” he said thus.

He was of the opinion that the relationship of a husband and wife is distinct from all other relationships, in that it carries with it a “legitimate expectation of sex”. He observed: “Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law.”

He added: “The subjective view of a Court that an act bears criminal character, and ought to be criminally punished, is no ground for it to strike down the legislative provision, by operation of which the act is not so punishable. If it does so, it completely effaces and obliterates the distinction between the legislature and the judiciary.”

The Court unanimously granted to the parties certificate of leave to appeal to the Supreme Court as the issue involved in this case raises a substantial question of law.

On February 7 this year, the Court granted two weeks’ time to centre to state its stand on the issue. However, on February 21, the centre sought further time stating that a consultative process on the issue is in progress and a considered stand could be taken only after consultation with all the states and other stakeholders. A communication in this regard has already been made and their responses are awaited. Refusing to grant further time to the centre on the ground that it was not possible to “endlessly” defer hearing on the issue, the Court reserved its judgment on the issue at hand.

   —By Banshika Garg and India Legal Bureau

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