6 min readMay 20, 2022 09:21 AM IST
First published on: May 19, 2022 at 01:42 PM IST
On 11 May, two judges of the Delhi High Court handed down separate judgments in RIT Foundation v Union of India. The issue before the Court was straightforward. Section 375 of the IPC defines “rape” as when a man has sex with a woman without her consent. However, an exception to Section 375 provides that it is not rape for a husband to have sex with his wife, regardless of consent. The effect of the law is that no husband can be prosecuted for the rape of his adult wife. Four petitions challenging the constitutional validity of the “marital rape exception” were filed at the Delhi HC.
In his judgment, Justice Rajiv Shakdher concluded that the marital rape exception violated the rights to life, equality, non-discrimination, and freedom of speech and expression under the Constitution. His analysis is sound, even if not surprising. There is no reasonable basis to distinguish between married and unmarried women. Marriage is a relationship of equals, and women do not forfeit their agency and sexual autonomy upon marriage. It is no answer to say that a man who rapes his wife may be prosecuted for other offences, such as cruelty. Rape must be called out for what it is.
Justice C Hari Shankar took a different view, concluding that the marital rape exception is constitutionally valid. Five aspects of his opinion are particularly striking. First, the judge held that it is the wrong starting point to assume that a husband who has sex with his wife without her consent “commits rape”. The judge noted that the effect of the exception to Section 375 of the IPC is that any sex between a husband and wife, whether or not consensual, is excluded from the definition of rape. That analysis does not bear scrutiny. Sex within marriage is carved out (by exception) from the definition of rape. It follows that, in the absence of that exception, non-consensual sex within marriage would be rape. More fundamentally, the judge allowed semantics to impede robust constitutional analysis. It makes little difference whether the starting point is that non-consensual sex within marriage should be characterised as rape or, for example, sexual assault. The critical question is whether it is unconstitutional to exclude non-consensual sex from the definition of rape.
Second, Justice Shankar’s opinion elevates marriage to a status that is anachronistic. The judge held that the marital rape exception was “aimed at preservation of the marital institution, on which the entire bedrock of society rests”. The difficulty with that proposition is obvious — is it the policy of the law that marriage is to be preserved at all costs, even when a man has non-consensual sex with his wife? If so, does that withstand constitutional scrutiny? The judge then observed, on a lighter note, that neither lawyers nor judges would be around to examine this issue absent the institution of marriage. Scientists might disagree.
Third, the judge rejected the challenge to the martial rape exception based on the right to equality on the spurious assumption that the impact on a woman who is raped by her husband cannot “be equated with the impact of a woman who is raped by a stranger”. Indeed, he goes so far as to say that “disagreements” (a euphemism for non-consensual sex) in marriage are “but natural” and “may even lend strength to the marital bond”. No evidence is cited in support of those claims. They also defy logic. Being raped by someone in whom you have reposed trust is likely to have an indelible emotional impact. Sadly, it is relatively easy to find many first-hand accounts that confirm this. It is perplexing to understand how non-consensual sex can ever strengthen a marriage.
Fourth, the judge concluded that, as a practical matter, a “majority of Indian women” would be reluctant to file a complaint of rape against their husbands in any event. Even if that were true, it is no reason to disempower, by the operation of the law, women who do have the resolve to make a rape complaint against their husbands from doing so. No one expects tens of thousands of rape complaints to come out of the woodwork after the marital rape exception is declared unconstitutional. But some will, and they will inspire others.
Fifth, Justice Shankar held that it is not within the court’s power to create a new offence, and striking down the marital rape exception would have that effect. There is no question of creating a new offence — the court would simply be striking down an exception carved out of an existing offence. The only principled basis for the judge’s objection is that it may be unfair to punish someone for rape for conduct that was excluded from the definition of rape when it was undertaken. But that is not a reason to avoid striking down the marital rape exception. The easy solution is for the court to declare that its judgment will apply only to conduct after the date of the judgment.
An appeal is now pending before the Supreme Court. Asking Parliament to revisit the marital rape exception may be the path of least resistance. However, as Justice Rajiv Shakdher observed in his judgment, “it is incumbent on courts to take decisions concerning complex social issues and not dribble past them”. Whether the marital rape exception violates fundamental rights under the Constitution is a question that falls within the Court’s core competency. There is only one reasonable answer to that question.
The writer is a barrister at Brick Court Chambers, London
Four petitions challenging the constitutional validity of the “marital rape exception” were filed at the Delhi HC. (Representational) 
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