ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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No Means No: Marital Rape Exception in India

The Delhi High Court on 11 May 2022 handed down two separate verdicts on a batch of petitions challenging the marital rape exception under Section 375 of the Indian Penal Code (IPC). Justice Rajiv Shakdher, in his judgment, has held that the marital rape exception in favour of the husband is violative of the right to equality, right to life, right against discrimination, and the right
to freedom of speech and expression. However, Justice C Hari Shankar did not agree with Justice Shakdher. Justice Shankar has held that the marital rape exception is not violative of the Constitution and is based on an intelligible differentia.

Justice Shakdher’s verdict is sound. There can be no rational basis to differentiate between married and unmarried women. The IPC classifies the crime of rape on the basis of marital status of the women, namely unmarried, married, and married but separated. This classification does not have any relation with the object of the statute, that is, to prevent and punish the offence of rape. A woman does not lose her right to sexual autonomy upon her marriage. Rape is rape irrespective of the fact that it is perpetrated by the husband on his wife.

The marital rape exception also violates the right to freedom of speech and expression. It violates the right of married women to say “no” to sexual intercourse. As correctly pointed out by the petitioner, conjugal rights end where right to bodily integrity begins. A sexual intercourse between man and woman require consensus ad idem.

Justice Shankar’s verdict is based on the argument that “the marital rape exception is aimed at preservation of the marital institution, on which the entire bedrock of society rests.” This argument diverts our attention away from some important questions. Are we trying to preserve the institution of marriage at all (potentially harmful) costs? Even when the husband has sexual intercourse with his wife without her consent? If so, is it constitutional to take away the rights of women to preserve the institution of marriage?

It was also held by Justice Shankar that “the impact on a woman who is raped by her husband cannot be equated with the impact on a woman raped by a stranger.” Indeed, there can be no comparison. Being raped by a husband whom she trusted the most will have an unforgettable emotional impact on her. Moreover, it is beyond doubt that non-consensual sexual intercourse can never strengthen the institution of marriage.

Another important observation made by Justice Shankar is the court’s inability to create new offences. It was observed that the court cannot make a new offence, and if the marital rape exception is struck down, it would amount to creating a whole new offence. However, there arises no question of making a whole new offence in this particular case. This would simply have the effect of striking down an exception of an already existing offence. And it is well within the competence of the court to decide whether the marital rape exception is violative of the fundamental rights granted under the Constitution. It is, in fact, incumbent on the courts to decide such issues.

The Supreme Court will be hearing the appeal, but Parliament should also reconsider the marital rape exception. It is high time we understand that we cannot ignore the rights of women under the Constitution on the assumption that non-consensual sexual intercourse would strengthen the institution of marriage. A relationship rests on trust and mutual respect, and the law should not legally disempower a married woman.

Hemendra Singh



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Updated On : 28th May, 2022
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