Forced Sex By Husband On Wife Should Be Labelled Rape; Right To Withdraw Consent Part Of Woman's Right To Life & Liberty : Justice Rajiv Shakdher On Marital Rape

Delivering a split verdict in pleas seeking criminalisation of marital rape, Justice Rajiv Shakdher of Delhi High Court, who ruled in favour of striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that sexual assault by the husband on his wife which falls within the fold of sec. 375 of the Indian Penal Code needs to be called out as rape.

"Oddly, the prevailing mores in society appear to stigmatize the victim rather than the rapist," Justice Shakdher observed further, while adding that the fact that certain ingredients of the offence covered under sec. 375 are found present in other provisions of the IPC does not provide a satisfactory answer as to why a sexual assault which is synonymous with rape should not be labelled as rape when the offence is committed on an adult married woman by her husband.

Therefore, Justice Shakdher agreed with the submissions put forth by Advocate Karuna Nundy, who appeared for two petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA), that the sexual assault which falls within the four corners of sec. 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage.

"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. Oddly, the prevailing mores in society appear to stigmatize the victim rather than the rapist. Therefore, I agree with Ms Nundy that the sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage." 

The Judge further observed that what needs to be emphasized is that the State, as a representative of the society, shares the responsibility to deprecate and punish sexual abuse or violence of every form.

"This responsibility, cast on the State, extends beyond interpersonal space ordinarily available to a married couple where there is no violence. Thus, when the State exempts criminal acts such as forced sex within marriage, it unwittingly engages in unequal disbursement of rights conferred by the Constitution. Consequentially, those, who commit the offence i.e., the husbands do not suffer the rigour of the law and those, who are victims, i.e., the wives get no protection from the law," the Court said.

Violative of quality clause and Article 21

While holding that the marital rape exception falls foul of the equality clause of the Constitution, the Judge concluded that the same violates Article 21 of the Constitution.

"The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is. The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim," Justice Shakdher added.

Consensual sex is at the heart of healthy and joyful marriage; Non-consensual sex antithesis of modern matrimony

He observed:

"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. The right to withdraw consent at any given point in time forms the core of the woman's right to life and liberty which encompasses her right to protect her physical and mental being."

"Non-consensual sex destroys the very core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred."

Freedom of expression includes woman's right to assert sexual agency

The judge opined that the exception is also violative of Article 19(1)(a) of the Constitution, as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.

The guarantee of freedom of expression includes a woman's right to assert her sexual agency and autonomy.

Justice Shakdher further added that what makes the continuance of the marital rape exception on the statute egregiously problematic is that, while it emasculates the woman's right to trigger prosecution against her husband for non-consensual sex, women, who are sex workers or are separated from their husbands, are invested with this right.

"Besides this, MRE makes no allowance for the circumstances in which a wife may say "no" to sex. For example, a wife may refuse to engage in sexual activity with her husband when she is ill or is menstruating or is unable to engage in sexual activity because of a sick child. The wife may also want to keep away from sexual activity in a situation where the husband has contracted an infectious, sexually transmissible disease, such as HIV; her refusal in such a situation may emanate not only on account of concern for herself but also, to protect the progeny which may result from such communion. These are aspects which only exacerbate the lack of autonomy and sexual agency which stands embedded in MRE," the Judge added.

Accordingly, Justice Shakdher held that the impugned provisions i.e. Exception 2 to sec. 375, 376B of the IPC as also sec. 198B of the CrPC, insofar as they concern a husband or separated husband having sexual communion or intercourse with his wife (who is not under 18 years of age), albeit, without her consent, as violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and struck them down.

The aforesaid declaration would, however, operate from the date of the decision, the Judge added.

Justice Shakdher also held that the offending husbands do not fall within the ambit of the expression "relative" contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

"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...It would be tragic if a married woman's call for justice is not heard even after 162 years, since the enactment of IPC. To my mind, self-assured and good men have nothing to fear if this change is sustained", Justice Shakdher said.

The Court today passed a split verdict on a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia.

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

Citation: 2022 LiveLaw (Del) 433

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