Delhi HC Gives Split Verdict on Marital Rape

Context:

A two-judge Bench of the Delhi High Court delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).

Relevance:

GS-II: Social Justice (Issues related to Women, Government Policies and Initiatives), GS-II: Polity and Governance (Important Judgements and Committees)

Dimensions of the Article:

1. About Marital Rape
2. What is the marital rape exemption?
3. What is the broad takeaway from the verdict?
4. What happens when a split verdict is delivered?
5. Criticism of India’s Legal regime on Marital Rape
6. On courts differing in views on marital rape

About Marital Rape

• According to Justice Verma committee recommendations,  The IPC differentiates between rape within marriage and outside marriage.  Under the IPC sexual intercourse without consent is prohibited.  However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. 
• The Committee recommended that the exception to marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.
• Therefore, with regard to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant. 

What is the marital rape exemption?

• Section 375 defines rape and lists seven notions of consent which, 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 essentially 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 High Court on the grounds that it undermines consent of a woman based on her marital status.
• Separately, the Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in law.

What is the broad takeaway from the verdict?

• Even though the court has delivered a split verdict, its intervention moves the needle in favour of doing away with the marital rape exemption in law.
• Justice Shakdher’s opinion takes the conversation forward on the subject, and sets the stage for a larger constitutional intervention before the Supreme Court.
• Recently, the Supreme Court refused to stay the Karnataka High Court order that for the first time put a man on trial for marital rape.
  • The SC’s refusal to stay the order indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.

What happens when a split verdict is delivered?

• 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 High Court, or an appeal can be preferred before the Supreme Court.
• The Delhi High Court has already granted a certificate of appeal to move the Supreme Court since the case involves substantial questions of law.

Criticism of India’s Legal regime on Marital Rape

• Marital rape is criminalized in more than 100 countries but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized.
• The Supreme Court has included sanctity of women, and freedom to make choices related to sexual activity under the ambit of Article 21. Therefore, this exception clause is violative of Article 14 and Article 21 of the Indian Constitution.
• Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage, with no autonomy or agency over their bodies. They deny married women equal protection of the laws guaranteed by the Indian constitution.
• A married woman has the same right to control her own body as does an unmarried woman. Unfortunately, this principle is not upheld in Indian rape laws.
• Our penal laws, handed down from the British, have by and large remained untouched even after 73 years of independence. But English laws have been amended and marital rape was criminalised way back in 1991. No Indian government has, however, so far shown an active interest in remedying this problem.

On courts differing in views on marital rape

• Kerala High Court backed marital rape as a valid ground for divorce.
• A court in Maharashtra gave anticipatory bail to a man while concluding that forcible sex with his wife was not an “illegal thing” though she said it left her paralysed.
• In 2017, the Supreme Court highlighted that legislative immunity given to marital rape stemmed from the “outdated notion that a wife is no more than a subservient chattel of her husband”.
• Gujarat High Court has held that “a law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape”.
• In the Suchita Srivastava v. Chandigarh Administration case, the SC backed a “woman’s right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods”. The court has held that “rape is not only a crime against the person of a woman, it is a crime against the entire society”.

-Source: The Hindu, Indian Express