According to the National Family Health Survey 5 (2019-21), Among married women between the ages of 18 and 49 who have ever experienced sexual assault, 83% name their present spouse as the offender, whereas 13% name a prior spouse. 4169 married (or formerly married) women who reported experiencing sexual assault identified their husbands as the perpetrators in 82% of the cases. Of them, 84% said their spouses “physically forced her to have sexual intercourse with him even when she did not want to.” This is analogous to the IPC’s definition of rape. According to section 375’s Exception 2, “When a husband engages in sexual activity with his own wife who is beyond the age of 15 is not deemed to constitute rape.”

Around the world, more than a hundred governments have either made marital rape illegal or have made it clear how to report a spouse for rape. However, India is still having trouble implementing the new legal paradigms.

In the landmark judgment of Independent Thought v. Union of India, the issue was whether sexual activity between a man and his wife, a girl between the ages of 15 and 18, constitutes rape? The apex court held that the exception of section 375 is apt to be quashed because it violates Articles 14 and 15 of the Constitution, is arbitrary, violates the rights of a girl child, and is not reasonable or equitable. However, the court has failed to take into consideration the cases where non-consensual sexual intercourse happens when the wife is above 18 years old.

In India, where the justice system has demonstrated an inconsistent and anarchic reaction to the sensitive topic of marital rape, it has become one of the most worrying problems. In Dilip Pandey v. the State Of Chhattisgarh, the court ruled that any sexual act performed by a legally married spouse is not considered rape, even if it is done against the woman’s consent or under duress.

The judiciary has also made some encouraging measures by defining marital rape as a breach of a woman’s basic right to bodily and sexual autonomy. In the case of Nimeshbhai Desai v. the State of Gujarat, the Gujarat high court held that “It is a disgraceful offence that has scarred the trust and confidence in the institution of marriage. A large population of women has faced the brunt of the non-criminalization of the practice.

The Bombay High Court said unequivocally in Madhukar Narayan v. State of Maharashtra that “No is a No even if the partners have any fiduciary relationship to entrust.”

In Hrishikesh Sahoo vs the State of  Karnataka, the Court rejected a petition filed by a husband seeking to drop charges of rape under Section 376 of the Indian Penal Code, levelled against him by his wife. It was held that the marital rape exception is regressive in nature and is violative of Article 14. The court added the institution of marriage could not be used to grant any particular male privileges or to permit men to unleash a “brutal beast” on their wives. The court emphasized that the current judgment was only about framing accusations against the spouse and not about whether marital rape should be treated as a crime. The legislature should look into the matter and consider eliminating the exemption, the court said.

In the recent laudable judgment which upheld the right of all women to have a safe and legal abortion, a bench led by hon’ble Justice D.Y. Chandrachud recognizes a husband’s act of sexual assault or forced intercourse committed on his wife as ‘rape’. “It is not inconceivable that married women become pregnant as a result of their husbands having ‘raped’ them. The nature of sexual violence and the contours of consent do not undergo a transformation when one decides to marry. The institution of marriage does not influence the answer to the question of whether a woman has consented to sexual relations,” Justice Chandrachud observed.

Recently, the Hon’ble Delhi High Court delivered a split verdict, whereby one judge favoured overturning the law’s exception that shields husbands from prosecution for non-consensual sexual intercourse with their wives, but the other judge declined to declare it illegal. Justice Rajiv Shakdher of the Delhi High Court, who ruled in favour of striking down the marital rape exception acknowledges the necessity for gender-neutral rape laws and adds that the Legislature or Executive must take action in this area.  However, Justice Shakdher agreed that the legislature could only bring reforms in this regard, and the justification for the court to uphold the marital rape exception cannot be cited as an impediment that otherwise does not pass the muster of the constitutional provisions. In light of this, Justice Shakdher declared the challenged provisions, including Exception 2 to Sections 375 and 376B of the IPC and Section 198B of the CrPC, to be in violation of Articles 14, 15, and 19(1)(a) and 21 of the Constitution insofar as they relate to a husband or separated husband having sexual communion or intercourse with his wife (who is not under the age of 18), even without her consent. He, therefore, overturned these provisions.

In contrast, Justice C Hari Shankar who ruled against striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), was of the opinion that there is no inherent fundamental right under Article 21, 19, or any other provision of the Constitution for a wife to demand that her husband be found guilty of rape. The wife has alternative civil and criminal remedies to apply in such circumstances, Justice Shankar continued, and the marital rape exception merely disapproves the use of the “rape” word in the context of marital sexual interactions. He contended that the concept of marital rape is  “antithetical to the very institution of marriage.” Emphasizing the institution of marriage, he further added that the relationship between a husband and a wife is distinct from all other relationships between man and woman. The carrying of a legitimate expectation of sex throughout the relationship as one of its inevitable episodes sets this relationship apart from all other partnerships between women and men. He observed that marriage is sacred and that sex between a wife and a husband should never be only a physical act performed to satisfy one’s “gross sensations.” The emotional component of sex acts when they are conducted between a wife and a husband is evident, he continued, and the marital bedroom is sacred ground. “A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference”, Justice Shankar added.

After examining the ruling, it can be inferred that the reasoning behind the contentions is highly flawed in nature and highlights the regressive and patriarchial mindset towards the fundamental rights of women. The mere assumption that there exists a “legitimate expectation of sex” between husband and wife is irrational and violates the wife’s sacrosanct right to bodily integrity and personal liberty. Marriage as a sacred institution should not take precedence over the legal necessity of consent. However, the exclusion under section 375 unduly inhibits a married woman’s right to life and personal liberty. Sexual autonomy is necessary for one’s mental and physical health.

Image from The Leaflet

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