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A Long Awaited Reform

Prabhat Singh Rana
14 Jan 2022 7:32 AM GMT
A Long Awaited Reform

Reading the recent observations by the Hon'ble Delhi High Court has brought a mixed feeling dominated by hope for possible reform. The bench[1] comprising of Justice Rajiv Shakdher and Justice C Hari Shankar observed that a woman has a right to sexual autonomy and to deny any sexual advances, even if by her husband. This case might just prove to be the final nail in the archaic marital rape exception.

Legislations And Recommendations

Section 375 of IPC, 1860 defines rape and also states the exception for the husband involved in a sexual act with his wife of age above 15 years (Exception 2). The age was altered by the Apex Court, in Independent Thought[2] (2017), to 18 years. But the bench left the question for criminalisation of marital rape open. Thus, holding indirectly that marriage is an implied consent for sexual intercourse.

In the past, this issue was observed by the 42nd Law Commission[3], which urged for the criminalisation of marital rape but the recommendations were bound to offence done on 'child wife'. This understanding that marital rape was never criminalised, started from the concept that when married duly, the partners give each other unequivocal consent to sexual intercourse, thus immunizing husband of any liability that may accrue on forced intercourse.

In 2002, the 172nd Law Commission Report[4] had an interesting observation, 'Sakshi' (a women rights organisation) suggested the removal of the marital rape exception, which the Commission did not find sufficient to be recommended on the ground that "the deletion may amount to excessive interference with the marital relationship".

In 2013, Section 375 was amended, including integration of Explanation 2 which states that 'willingness' should be communicated to participate in the 'specific sexual act'. Unfortunately, the provision continued with an undue immunity to the husband. The 2013 amendment was brought through recommendations by Justice J. S. Verma Committee (2013). Interestingly, the Committee also recommended that "the exception for marital rape be removed.", but that was ignored in the legislation.

Arguments Advanced

Expanding upon the various prevalent arguments in favour of deletion of the marital rape exception, the exception is found to be vague on two major grounds. Firstly, it is inconsistent with other provisions, e.g. a person is equally liable for assault whether he does so on another woman or his wife. There seems to be no differentiation between the acts. Crime, as it is, consists of mens rea and actus reas, the presence of them is and has been a guiding principle in holding acts as an offence (barring a few where the presence of either is sufficed).

Secondly, the Section classifies rape based on marital status, in general terms, if a person forces intercourse on a woman before being married to her, it will constitute rape, but if the person forces himself on her, after marrying her, it will somehow attract the immunity of Exception 2. And this immunity will mysteriously disappear when the couple separates and the person forces himself on the same woman, thus now constituting rape. Mr. Rajshekhar Rao appearing as amicus curiae rightly pointed out the duality of this exception.

If the logic behind this is just that there exists consent to all sexual acts by both the partners with the consent of marriage, this holds a very futile argument. Since time has passed when marriage was considered as transferring of the woman from one guardian (generally father) to other (husband), now more than the primitive conservative transfer it is an agreement between two consenting individuals to live a life together. This does not and should not constitute a blanket consent to all forms of sexual or non-sexual acts.

Cheat On Fundamental Rights

Further, the differentiation is not only vague by the logic of criminology but also runs opposite to the fundamental rights enshrined in the Constitution. This goes against Article 21, as the right to sexual privacy and bodily self-determination has been upheld as fundamental rights by the Apex Court in Justice K.S. Puttaswamy[5] and Madhukar Narayan[6]. Further, in Chandrima Das[7], it was held that rape is against the basic human rights as it destroys the dignity and sanctity of the victim. Thus, since Exception 2 runs inconsistent with the fundamental rights, it does not hold water to the test of Article 13.

Counsel appearing for the petitioners have presented a strong case against the said exception. There seems to be no reason as to why this exception should not be held unconstitutional. The Counsel for the State argued that wife has remedy even if the exception is to be continued. The contention here is not just that the wife is left without appropriate remedy, it is the equal treatment of two cases, and removal of the distinction on myriad basis which leaves one discriminated just because she is married to the perpetrator.

In past, the Court has come close to complete criminalisation of marital rape, several reports recommended the deletion of marital rape exception, but somehow that was ignored, but hope remains high for this time. The message should be out, in every scenario, "No means no!"

The author is an Advocate at High Court of Delhi. Views are personal.

[1] RIT Foundation v. UoI

[2] Independent Thought v. UoI and Anr. [(2017) 10 SCC 800]

[3] June, 1971; pg.: 278

[4] March, 2000; pg.: 22-23

[5] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. [AIR 2017 SC 4161]

[6] State Of Maharashtra And Another vs Madhukar Narayan Mardikar [AIR 1991 SC 207]

[7] The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors. [(2000) 2 SCC 465]

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