Marital Rape Exception Violates Woman's Right To Dignity, Personal & Sexual Autonomy And Right To Self Expression: Petitioners Tell Delhi HC

In relation to the bunch of petitions seeking criminalization of marital rape in India, the Delhi High Court has been told by two of the petitioners that the marital rape exception provided under sec. 375 of Indian Penal Code violates a woman's right to dignity, personal and sexual autonomy and her right to self expression enshrined under the Constitution of India.

This comes after the petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA) filed written submissions before a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar. The petitioners are being represented by Advocate Karuna Nundy.

Three-fold submissions have been made before the Court; first, that there is no presumption of constitutionality of a pre-constitutional provision; two, striking down the marital rape exception will not create a new offence and third, the marital rape exception and impugned provisions fail to pass the constitutional tests of Art. 14, 15, 19 and 21. It was added that it is the constitutional court explicit mandate under Art. 13 to set it aside, without awaiting legislative action.

On the aspect of marital rape exception being violative of Art. 14, it has been submitted that the provision creates classification on the basis of marital status of the victims like unmarried women, live in or divorced partners, married women and married but separated women.

It has further been added that such a classification has no reasonable nexus with the object of the statute to criminalize rape which is to prevent and punish non consensual sexual intercourse.

"Further, the Exception suffers from irrationality and manifest arbitrariness inasmuch as it provides immunity to a man for forcibly having sex with his wife, but not to a man forcibly having sex with a woman who is not his wife (but may, for instance, be his live in partner). Such privilege of the purported sanctity of an 'institution' over the rights of the individuals involved is manifestly arbitrary and thus in violation of Art. 14. The Supreme Court stated in response to the State's defence of the MRE w.r.t. minors, that "marriage is not institutional but personal - nothing can destroy the 'institution' except a statute that makes marriage illegal and punishable"," the written submissions add.

Furthermore, it has been stated that the marital rape exception violates the woman's right to dignity, liberty, personal and sexual autonomy guaranteed under Art. 21. She added that the provision is also violative of a married woman's right to self expression under Art. 19(1)(a).

" As such, the impugned provisions of law do not recognize the right of a married woman to say no to sexual intercourse with her husband. As a corollary, the impugned provisions also take away a married woman's ability to say 'Yes' to sexual intercourse, both aspects of Exception 2 to 375 being contra Article 19(1)(a) and limiting a married woman's right to freedom of sexual expression and behaviour," it states.

It has also been submitted that there is a very small proportion of marital rape cases are reported amongst which false cases and convictions are even smaller.

"Married women hesitate to report such incidents even to their lady health visitors. While all criminal justice suffers 'false negatives' i.e. acquittal of the guilty and 'false positives' or conviction of the innocent, there is no evidence that false cases concerning rape and sexual assault in cases where the assaulted and accused have a prior sexual relationship are misused more that other criminal laws," it has been added.

During the course of hearing today, the bench attempted to trace down the legislative reasoning behind the exception to Section 375 IPC, which exempts sexual intercourse between a husband and a wife from the offence of rape.

The Court said that there is a qualitative difference between cases where the parties are married and where they are not married and that prima facie, this qualitative difference might have a part to play in the exception that been added into Section 375 IPC.

Earlier, Senior Advocate Colin Gonsalves appearing for one of the petitioners argued that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Case Title: RIT Foundation v. UOI and other connected matters

Click Here To Read/Download The Written Submissions