Wife Has Right To Say 'No' To Husband; Marital Rape Exception Patriarchal & Archaic : Justice Deepak Gupta

Former Supreme Court judge Justice Deepak Gupta shared his views on marital rape in the backdrop of Right to Privacy. Justice Gupta was delivering an online lecture on the topic “Developments in Fundamental Rights in Last Decade” as part of LiveLaw's 10th anniversary lecture series.

On being asked about his views on the issue of marital rape, which is pending in the Supreme Court for adjudication, he replied: “Women has a right to say no. She has a right to say no to her husband also. …Just because you are husband and wife, wife does not have a right to say no to have sex? When she says no then it means no. There is nothing more to it. It is a very simple argument. It is just that we have to outgrow our patriarchal and archaic system of thought. Otherwise, there is nothing. This is the most simple thing on earth.”

Justice Deepak Gupta was part of the Supreme Court bench led by Justice Madan B Lokur in the Independent Thought v. Union of India judgment which held that sexual intercourse with a minor wife who is aged below 18 years will amount to the offence of rape. The bench read "15 years" mentioned in Exception 2 to Section 375 of the Indian Penal Code as "18 years". However, the said judgment specifically left open the question of marital rape.

As per Section 375 of the Indian Penal Code (IPC), rape includes all forms of sexual assault involving non-consensual intercourse with a woman. However, under Exception 2 to Section 375. sexual intercourse between a husband and a wife aged over 15 years of age(which was read as 18 years in Independent Thought) does not constitute “rape” and thus prevents such acts from prosecution.

 On May 11, 2022, a Division Bench of the Delhi High Court, comprising Justices Rajiv Shakdher and C Hari Shankar, delivered a split verdict on a batch of petitions challenging the exception provided to marital rape in the IPC. Justice Shakdher held that the exception is unconstitutional, while Justice Hari Shankar upheld its validity, saying the exception was “based on an intelligible differentia”. Since substantial questions of law were involved, the judges granted leave of appeal to the Supreme Court.

Now, a batch of petitions is listed before the Supreme Court including an appeal against a judgment by the Karnataka High Court that allowed the prosecution of a man for raping his wife (Hrishikesh Sahoo And State Of Karnataka & Ors, Slp(Crl) 4063/2022). It is worth mentioning that in the said Judgment, the Karnataka High Court opined:

“A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman.

Full lecture of Justice Gupta can be watched here.