Law on marital rape, and the Delhi High Court ruling

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CategoryPolity

Last Updated13/05/2022

Delhi HC delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).
Justice Rajiv held that the exception under Section 375 (which deals with rape) of the IPC is unconstitutional, while another judge held that the provision is valid.

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Section 375 defines rape and lists seven notions of consent that, if vitiated, would constitute the offence of rape by a man.
However, the provision contains a crucial exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
This exemption allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife.
The exemption is also under challenge before the Gujarat HC on the grounds that it undermines the consent of a woman based on her marital status.
Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in the law.

Against Basic Rights of Women: This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.
- It also denies the agency over their own bodies to women.
Dismal State of Judicial System: Some of the reasons for low rates of prosecution in the cases of marital rape in India include:
- Low reporting of crimes due to societal conditioning and low legal awareness.
- Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
- Out of court settlements due to the lengthy process of justice/lack of admissible proof.
Justice J. S. Verma Committee Recommendation: The Justice J. S. Verma Committee was constituted after the Nirbhaya gang rape in 2012.
- While some of its recommendations helped shape the Criminal Law (Amendment) Act, 2013, its most radical suggestions, including on marital rape, were swept under the carpet.

Centre initially defended the rape exception and later changed its stand and told the court that it was reviewing the law.
Solicitor General brought to notice a 2019 committee set up by the Ministry of Home Affairs to review criminal laws in the country.
Delhi government argued in favour of retaining the marital rape exception.
The government’s arguments spanned from protecting men from possible misuse of the law by wives, to protecting the institution of marriage.

In case of a split verdict, the case is heard by a larger Bench.
This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches or Division Benches are not uncommon.
The larger Bench to which a split verdict goes can be a three-judge Bench of the HC, or an appeal can be preferred before the SC

Court’s intervention will work in favour of doing away with the marital rape exemption in law.
Justice Shakdher’s opinion takes the conversation forward on the subject and can initiate larger constitutional intervention before SC.
SC refused to stay Karnataka HC order that for the first time put a man on trial for marital rape.
- It indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.

Marital rape immunity is known in several post-colonial common law countries.
Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
In the UK, the House of Lords overturned the exception in 1991.
In the case known as R v R, the Lord's held that time had “arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim”.
They also said that verdict was not creating a new offence, rather only removing a common-law fiction that has its roots in ecclesiastical law.
Subsequently, in 2003 marital rape was outlawed by legislation in the UK.

Multi-stakeholder Approach: The criminalisation of marital rape will be a symbolic start for sure.
- The sentencing could be decided by an expert committee consisting of medical personnel, family counsellors, judges and police on the basis of varied aspects like the couple’s sexual history, and physical and psychological harm to the victim.
Bringing Behavioural Changes: Statutory reform should be accompanied by awareness campaigns sensitising the public (civilians, police, judges, medical personnel) on the importance of consent, timely medical care and rehabilitation, skill development and employment for facilitating the economic independence of victims.

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