Delhi HC delivers split verdict on marital rape. What is the case?
Getting married should be a happy choice. But for women, it is a risk. It is a risk because the husband can turn out to be a ‘wife rapist’, and the woman would be expected to get raped by her husband just to uphold the marriage.
If you are in India, it is worse, as there is no law in India that will come to the woman’s aid.
When the woman enters a marriage, the woman is definitely not expecting that one day her husband can force her into having sex with him even though she’s not okay with it. But according to the law in India, it is the husband’s right to do so.
If marriage is so sacred the concern with marital rape should be greater, not lesser.Abuse of power over those that one has an obligation is loathsome.
— Omair Ahmad (@OmairTAhmad) May 12, 2022
WHAT HAPPENED? On May 11, 2022, the Delhi High Court was set to pronounce a verdict on the criminalisation of marital rape. Petitioners had challenged Exception 2 in Section 375 IPC (Section 375 IPC defines rape and the exception grants immunity to husbands in forced sexual act against wife).
However, the two-judge bench of Justices Rajiv Shakdher and C Hari Shankar delivered a split verdict in the matter.
Justice Rajiv Shakdher who ruled marital rape is a crime: “Certain sexual offences need to be called out for what they are. Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender.”
Justice C Hari Shankar who disagreed: "A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?"
Now, the case will be further heard in the Supreme Court.
WHAT IS THE CASE ALL ABOUT?
1. The case has been going on in Delhi High Court since 2015 (and alas, after nearly 7 years, there is no concrete verdict – welcome to the Indian judiciary). RIT Foundation had filed a petition in 2015, followed by several other petitions at different periods of time including by a victim of marital rape.
2. Exception 2 Section 375 IPC: The petitions against marital rape challenged Exception 2 to Section 375 of the IPC. Section 375 of the IPC criminalises rape as, “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 18 years of age."
3. What is the exception: The Exception 2 in the law states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age (raised to 18 years by an SC order in 2017), is not rape”.
4. What the Centre said: In 2017, the Centre had filed an affidavit refusing to make marital rape a crime. Centre said that doing so would “destabilise the institution of marriage”, and can become a tool of harassment against men.
In January 2022, the Centre also said that women could seek justice through the Domestic Violence Act or the marital cruelty provision of the IPC.
In the Centre’s own words and that of Justice Shankar, the ‘sanctity’ of marriage is more pious and important than a woman’s sexual rights in a marriage.
I’m still thinking about the marital rape verdict and once again my fears are confirmed that getting married in this country means saying yes to lifelong bondage. I mean how many women even have the freedom to ask for a divorce in India? very sad state of affairs.
— from this world but not of it (@sadelokeshi) May 12, 2022
The men’s rights activists, NGOs, Centre and all those who argue against criminalising marital rape have one major highlight in their argument, that there would be false cases filed against husbands.
The carceral state will criminalise everything: sex work, inter-faith marriages (in the name of love jihad) but not marital rape, that's when the public/private divide that oppresses women in familial structures becomes too sacred for them to intervene in https://t.co/RUMb5WMxrB
— Anupriya Dhonchak (@AnupriyaDh_19) May 11, 2022
WHAT ABOUT MEN BEING ABUSED?
It is true that most of the violence against the other gender laws in our country are not gender-neutral. Most of the laws specifically address women and protect women. But it is also true that women are mostly at the receiving end of the violence by men, compared to the other way round.
WHAT OTHER COURTS HAVE SAID SO FAR ON MARITAL RAPE
1. In 2021, the Kerala High Court granted divorce to a woman on the grounds of marital rape considering it cruelty. But the woman couldn’t legally seek justice for the violence she endured because India doesn’t recognise marital rape as a crime.
2. Recently, the Karnataka High Court refused to quash a case against a man by his wife, who accused him of keeping her as a ‘sex slave’. The court said, “Rape is Rape,” and no marriage cannot be grounds for unleashing a brutal beast. However, the court did not say that it was penalising the man for marital rape.
However, as the Karnataka High Court implied, it was an exceptional case. And no, in usual cases, marital rape cannot be claimed in existing laws such as the domestic violence act.
The British who brought the exception to the law to India in 1860 have since criminalised marital rape in their own country, like several other countries. This leaves India in the bracket with the likes of Bangladesh, China, Haiti, Laos, Mali, Myanmar, Senegal, Afghanistan, Tajikistan, Lebanon, Malaysia, Singapore, Egypt, Libya, Oman, Yemen and Kuwait, to not criminalise marital rape.
What now?