The Delhi High Court has stated that prima facie marital rape should be punishable though it may not be the same as a relation outside of marriage.
The court was on Monday hearing a clutch of petitions challenging the exception to Section 375 of the Indian Penal Code that exempts marital rape.
A division bench of Justice Rajiv Shakdher and Justice C Hari Shankar also discussed the possible legislative reasons for the exception to IPC Section 375.
Advocate Karuna Nundy, on behalf of petitioners RIT Foundation, argued that the marital rape exception and impugned provisions fail to pass the constitutional tests of Articles 14, 15, 19 and 21. It is the constitutional court’s explicit mandate under Article 13 to set it aside, without awaiting legislative action.
“Indeed, slapping your wife or killing her in the bedroom is specifically criminalized, but not raping her,” Nundy argued.
Advocate Nundy relied on a Supreme Court judgment that read down exception 2 to Section 375 (which defines rape), which allowed such a sexual act.
The apex court had held, “On a combined reading of C.R. v. UK and Eisenstadt v. Baird, it is quite clear that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Similarly, rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault.”
Nundy pointed out that a minuscule proportion of marital rape cases were reported and the convictions were even smaller.
She argued that the provision created classification on the basis of the marital status of the victims like unmarried women, live-in or divorced partners, married women and married but separated women. And that it had no connection with the statute to criminalize rape which is to prevent and punish non-consensual sexual intercourse.
Earlier, Senior Advocate Colin Gonsalves argued that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.
Trying to discuss why there is an exception to marital rape as a crime in Section 375, Justice Shankar remarked, “It defines rape in a very wide manner. It says even a single instance of unwilling sex with the opposite party is enough to call it rape.”
He added, “Let us take a hypothetical situation where there is a couple who is newly married. The husband one day wants to have conjugal relations with the wife. Wife says no. Husband says if you don’t allow me, I am leaving the house and going. If we are to knock off this exception, this is rape.”
Justice Shankar disagreed that there was no intelligible difference between a married couple and an unmarried one. “There is a reason for that. If a boy and a girl are not married, howsoever close their relationship may be, boyfriend or girlfriend or Live-in, neither of them has any right to expect sexual congress with the other. The law doesn’t recognize any rights. Therefore, there is an absolute right on each party to say I will not have sex with you. If the other party agrees, it’s a matter of accommodation. In a marital relationship, there is a qualitative difference. There is an expectation of a conjugal relationship of both parties.”
Justice Shankar pointed out that marriage gives a social and legal right to expect normal sexual relations.
Simultaneously, Justice Shankar observed, “Marital rape according to me should be punished, prima facie. There should be no doubt about it. Women’s sexual autonomy, bodily integrity, right to say no, there can’t be a compromise.”
“We are not here on whether marital rapes should be punished, we are on the question as to whether in such situation this man should be held guilty of rape,” Justice C Hari Shankar said.
Justice C Hari Shankar said that the issue was whether to strike out the exception under Section 375 IPC.
“There is no concept of marital rape in India. The moment we use this expression marital rape, it’s something that I had exceptions to on the very first day and I continue to do so. The moment you call it rape, you come into sec. 375 IPC. If it is rape, it has to be punished, marital, non-marital or any kind. This repeated use of the expression marital rape is something which according to me obfuscates the actual issue before us.”
He observed that as to the question about striking down the provision as unconstitutional, there are well-settled principles by the Supreme Court. He said that in an ideal situation, the bench should have been told about the situations in which the provision has to be struck down.