A DIVISION bench of the Delhi High Court delivered a split verdict Wednesday on petitions seeking criminalisation of marital rape, paving the way for the matter to be adjudicated by the Supreme Court. While one judge said “legitimate expectation of sex” is an “inexorable” aspect of marriage, the other said the “right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty”.
In his part of the 393-page verdict, Justice Rajiv Shakdher struck down an exception in the law that protects men who have non-consensual intercourse with their wives, from criminal prosecution under IPC section 376 (punishment for rape).
He said the exception in question is “steeped in patriarchy and misogyny” and the “classification, in my opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is ‘real rape’ and that the same act within marriage is anything else but rape”.
But the other judge, Justice C Hari Shankar, disagreed and said the provision known as Exception II in IPC section 375, which defines rape, does not violate Articles 14 and 21 of the Constitution on equal protection under law and right to life and liberty.
Both the judges, however, agreed to grant a certificate of leave to the petitioners for appeal before the Supreme Court, saying the matter involves substantial questions of law.
In his ruling, Justice Hari Shankar stated that “what distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex”.
“Sex between a wife and husband, whether the petititioners seek to acknowledge it or not, is sacred,” the judge stated.
“Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law,” he stated.
“The daughter born of such an act would, if the petitioner’s submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling. Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute,” he ruled.
Justice Hari Shankar held Exception II it to be “eminently in public interest”. He said that a husband having sex with an unwilling wife cannot be “equated with the act of ravishing by a stranger”.
He ruled that the exception for husbands “immunises, in effect, the marital relationship from the slur of rape, and the disgrace that comes with it, whatever be the nature of the sexual activity that takes place within the four corners of the relationship, and irrespective of whether the activity is consensual or non-consensual”.
He said every incident of non-consensual sex of a man with a woman is not rape. “To urge that rape, per definition, is non-consensual sex by a man with a woman, is just as simplistic as the contention that murder, per definition, is the taking of the life of one man by another,” he stated in the ruling.
There is an “intelligible differentia” between sexual acts committed within the confines of marriage, as against sexual acts committed between strangers, he stated.
Distinguishing the act of rape from a husband having sex with his unwilling wife, Justice Hari Shankar said: “That what he is doing is wrong, no one can deny. The distinction between the two situations is that, where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part… She has, nonetheless, by her decision to marry the man, given, to him, the right to expect meaningful conjugal relations with her.”
If the man exercises “a right that vests in him by marriage” and requests his wife to discharge “an obligation which, too, devolves on her by marriage”, Justice Hari Shankar said, “howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger”.
He said that a husband may “on occasion, compel his wife” to have sex with him even if she may not be inclined. However, he questioned whether “her experience” is the same as that of “a woman who is ravaged by a stranger” and asked whether the wife “in a subsisting and surviving marriage” would want to drag her husband to court for rape.
Justice Hari Shankar said it would be “equally unrealistic” from the point of view of a victim to presume that a wife on whom husband forces sex “would suffer the same degree of violation as a woman who is ravaged by a stranger”.
“Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage,” said the judge.
He also said the court cannot hold as incorrect the legislature’s view that the exception should be retained for preservation of the marital institution. “…it would amount to substituting our value judgement for the value judgement of the legislature, which, in a democracy, is unquestionably entitled to precedential preference, as the voice of the legislature is, classically and constitutionally, the voice of the people,” he stated.
“The subjective view of a Court that an act bears criminal character, and ought to be criminally punished, is no ground for it to strike down the legislative provision, by operation of which the act is not so punishable. If it does so, it completely effaces and obliterates the distinction between the legislature and the judiciary,” said the judge.
Justice Hari Shankar said the exception under IPC section 375 does not condone sexual violence against wives. “If some husbands do feel so encouraged, that would be attributable solely to their own perverse predilections, and is certainly not the direct and inevitable effect of operation of the impugned Exception,” he said.
The petitions of RIT Foundation, All India Democratic Women’s Association and a victim seeking criminalisation of marital rape were pending before the court since 2015 and 2017. While rejecting Centre’s request for more time to respond afresh, the court had reserved its verdict in the case on February 21 this year.
The Centre had earlier told the court that its written stand of 2017 should not be treated as final as it wants to hold consultations with stakeholders first. However, the bench had said it cannot “let the matter hang like this”.
The Centre had submitted in 2017 that striking down the exception for husbands “may destabilise the institution of marriage apart from being an easy tool for harassing” them.
While rejecting Centre’s request for more time to respond afresh to the petitions, the court had reserved its verdict in the case on February 21. (File) 
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