Marital rape: With reference to the recent split verdict 

Introduction

In our society, marriage is considered a sacred and holy relationship. Many still believe that it is a match made in heaven. Our society considers marriage as a pure and beautiful relationship between a husband and a wife. They believe that it is a divine relationship which cannot be broken, and which will continue till eternity.

So, these are some of the positive aspects which are believed and widely followed by most members of our society. But as we all know, if the positive opinion is followed on one side, there always exists a negative opinion on the other side. Thus, many people in our society still believe in this stereotype that women in marriage are the property of their husbands.

In this modern society, many people still follow this belief that once a woman is married, she becomes a part of their husband and they kind of loses their own identity. It is believed that they must follow every direction of their husband and must accept their husband’s each and every decision, whether right or wrong.

Apart from these, the most dangerous belief which has been followed widely by our society is that once a woman is married, it is assumed that she has given her consent forever to the husband for having a sexual relationship without any excuse or hesitation. It has been sadly believed that they have become the property of husbands and thus, can be used as per her husband’s wish.

And hence, because of all these contradictory views, the status and position of marital rape has been a topic of great discussion in our society. And thus, marital rape is not recognized as an offence in our country. Rather, it is an exception to rape provided under section 375 of the Indian Penal Code, 1860.

Marital rape – exception of section 375 IPC, 1860 (Rape)

Section 375 of IPC, 1860 defines the offence of rape. But this section also has two exceptions. Under those exceptions, the person cannot be convicted for the offence of rape. One such exception is marital rape.

This exception states that if any act of sexual intercourse is done by a man with his own wife who is not under the age of fifteen years (later changed to 18 years), it is not considered rape. This section means that if a husband performs any non-consensual sexual activity with his wife, then he cannot be made liable for this offence.

Many believe that this exception is based on an old assumption that the husband has the full right to exercise his marital rights and if a woman is married, she cannot say no to any sexual activity.

This exception has been argued in many cases. Some believe that marital rape should be considered as an offence, while others believe that it should remain as an exception only. The status and position of marital rape have been cleared in many landmark cases, some of them are as follows:

1. Independent thought vs. UOI 2017 – in this case, the NGO named Independent Thought filed the petition in court. The petition was filed for the unreasonable classification of age of married girls under the exception of marital rape and to declare marital rape as an offence. But the Supreme Court partly agreed with their statement and hence, increased the age limit for marital rape from 15 years to 18 years. But marital rape remained as an exception to section 375 IPC, 1860.
2. Nimeshbhai Bharatbhai Desai vs. State of Gujarat, 2018 – in this case, the court held that marital rape cannot be considered as a separate offence because it is believed that wives have given their implied consent to their husbands for having sexual intercourse at the time of marriage. So, after marriage, there are always possibilities of non-consensual sexual activity.
3. In the recent case of Dilip Pandey and ors. vs. state of Chhattisgarh 2021, the court cleared the position of marital rape and declared that it is not a separate offence and non-consensual sexual intercourse between a husband and a wife is an exception to section 375 of IPC, 1860.

Through these landmark judgements, it is pretty clear that forceful sexual intercourse or any sexual activity without the wish of wives is clearly acceptable and it is not an offence of rape. These judgements have not followed the opinion of a landmark case named K.S PuttaSwamy vs. Union of India, in which it was held that the right to privacy also includes decisions regarding one’s sexual activities and intimate relations.

Recent split verdict of the Delhi high court

It is very well known that many countries have criminalized marital rape as an offence, but our country is among those countries which have not yet criminalized marital rape. Even after so many landmark judgements on the status of marital rape, it is still a topic of discussion in our country. But the sad truth is that even after so many discussions, we have not reached a definite conclusion and still the courts are delivering contradictory opinions.

The recent example of this contradiction is the split verdict passed by the Delhi High Court. The Delhi High court passed this judgement after reviewing the petitions filed by the RIT foundation and by All India Democratic Women’s Association in 2015 and 2017 respectively. The petitioners argued that marital rape as an exception should be declared unconstitutional. They argued that it is violating Articles 14 and 21 of the Indian Constitution and it is violating women’s right to live with dignity and their right to say no.

But the Delhi High Court instead passed the split verdict where two justices named justice Rajiv Shakdher and Justice C Hari Shankar presented contradictory views. Justice Rajiv believed that marital rape as an exception is not right. According to Justice Rajiv, marital rape as an exception is “steeped in patriarchy and misogyny.”^[1] He presented the viewpoint that this exception is highly unreasonable.

On the other hand, Justice C Hari Shankar disagreed with the same. He believed that marital rape as an exception is not unconstitutional as it does not violate Articles 14 and 21 of the Indian Constitution. He quoted that “sex between a wife and a husband, whether the petitioners seek to acknowledge it or not, is sacred.”^[2] He is of the viewpoint that declaring it unconstitutional will break the sanctity of marriage.

He said that there is a reasonability for this exception as it is based on the principle of intelligible differentia. He believed that if the act is done by some stranger, then the woman will suffer more trauma, and the degree of trauma and harm will be far less in the case of sexual activity performed by her husband without her wish.

Justice C Hari Shankar also said by contradicting the views of Justice Rajiv that marriage is a relationship where both the parties have entered with their own free will, they have agreed to enter into this relation with full conscious mind, and this consciousness also includes the willingness of a woman to enter into any sexual activity with her husband as this sexual activity forms an important part of a married life.

He believes that rape by a total stranger and the non-consensual sexual activity between a husband and a wife are two completely different aspects which cannot be merged together.

Hence, these contradictory views are not even somewhere near to solving this sensitive issue of marital rape. But the last hope left for the petitioners is to seek the opinion and judgement of the Supreme Court.

Conclusion

A person can’t even imagine himself dealing with the issue of rape. But what about those women who have to deal with daily trauma, who have to suffer from mental and physical pain etc. These women had to fight for themselves and had to encourage themselves to move on with their lives.

But is it safe to say that the trauma suffered by a woman from the offence of rape under section 375 of IPC, 1860 is different from the trauma suffered by a married woman during marital rape? I think the answers that will come from the hearts of the people of our society will be certainly no.

It has been evidently said that “justice delayed is justice denied.” Now it’s high time that our law-making system should give a proper judgement on this sensitive issue of marital rape. Marital rape as an exception is a very important topic which requires great attention as women going through marital rape suffer on a regular basis as they have to be in the presence of the accused daily.

Yes, it is quite understandable that criminalizing marital rape and declaring it as a separate offence would be a very hectic task as this might increase the possibility of fake and fabricated cases, but this cannot be the sole reason to ignore the sensitivity of this matter.

Keeping marital rape as an exception by saying that there is an assumption that women have given their consent for a lifetime for sexual activities after marriage is not right. How can one possibly believe that a woman is under an obligation to surrender her body to her husband forever as she is not the property of her husband which can be used in any way.

Society and our law-making system should understand that everyone, including women, has a right to say no and have the right to live with dignity.  Neglecting the problem is never a solution and, even if there are difficulties, it’s only right to face that challenge and to serve justice accordingly.

Thus, the status and position of marital rape should be cleared as soon as possible and there should be certainty in the judgement which can clear this sensitive issue in the easiest way possible.

References:

[1] https://indianexpress.com/article/cities/delhi/delhi–high–court–split–verdict–petitions–seeking–criminalisationof–marital–rape–7911335/

[2] https://indianexpress.com/article/cities/delhi/delhi–high–court–split–verdict–petitions–seeking–criminalisationof–marital–rape–7911335/

This article has been authored by Nikita Goyal, a student at Amity University, Rajasthan.