Justice Rajiv Shakdher of Delhi High Court on Wednesday said that it is incumbent on courts to take decisions concerning complex social issues and not “dribble past them”, while striking down the marital rape exception in a split verdict.
“As that is the mandate of the Constitution and, therefore, a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution. Thus, the mea culpa on behalf of the institution is that one way or the other the issue ought to have been laid to rest much earlier,” Justice Shakdher said in his judgment.
The judge said the doctrine of judicial self-restraint is not applicable in cases involving determination of controversies that involve alleged infractions of fundamental rights by the State, in the context of violation of civil rights or human rights. “Thus, ‘shunning responsibility’ to decide what falls within the ken of the court and leaving it to the Executive and/or the Legislature, in my view, would constitute abandonment of duty and the role which the Constitution has defined for the courts,” said Justice Shakdher.
Ruling on Exception 2 of Section 375 that protects men, who have forced non-consensual intercourse with their wives, from criminal prosecution under IPC Section 376 (rape), Justice Shakdher said, “(A) sex worker has been invested with the power to say ‘no’ by the law, but not a married woman. In a gangrape involving husband of the victim, the co-accused will face the brunt of rape law; but not the offending husband, only because of his relationship with the victim.”
He said that to a woman violated by her husband by being subjected to the vilest form of sexual abuse, it is no answer to say that the law provides her other remedies. None of other statutes bring within its fold the offence of rape, he added.
The State cannot have a plausible “legitimate interest” in saving the marriage when the same is “tyranny”, the judge said. On the argument that the State has recognised other forms of sexual offences and granted the exception only to protect the familial structure, Justice Shakhder said this “amounts to giving recognition to the abominable Common Law Doctrine that a married woman is nothing but chattel who loses her sexual agency once she enters matrimony”.
The judge said the attempt to keep away the law even when a woman is subjected to forced sex by her husband, “by demarcating private and public space”, is to “deny her the agency and autonomy that the Constitution confers on her”. One cannot close one’s eyes to rape merely because it is difficult to prove, the judge said on the question of evidence in marital rape.
Sexual assault by the husband needs to be called out as rape, “as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender”, he said.
“It impairs and nullifies their sexual agency with regard to coitus and their right to procreate or abstain from procreation. More fundamentally, their power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses, is completely eroded,” Justice Shakdher said about the exception.
The conjugal expectation is tenable as long as the expectation is not equated to an unfettered right to have sex without consent of the wife, he said while dealing with argument on husband’s expectation.
is not equated to an unfettered right to have sex without consent of the wife, he said while dealing with argument on husband’s expectation.
Justice Shakdher said: “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate.”
Justice Shakhder also struck down Section 376B IPC and Section 198B of CrPC “insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years), albeit, without her consent”.
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On the argument that striking down the exception would lead to registration of false cases, Justice Shakdher said that notion is not backed by any empirical data. He also said that courts are fully equipped to deal with false cases.
“This submission, if I may say so, is suggestive of the fact that married women in India are manipulative or capable of being manipulated more than their counterparts in other jurisdictions,” the judge said.
On the question that striking down the exception would create new offence, Justice Shakdher said the offence of rape is already defined and all that would happen is that the offending husband would fall within its ambit.
The State, as a representative of the society, shares the responsibility to deprecate and punish sexual abuse and violence of every form, he said.