On marital rape: The importance of consent

Context: A split verdict in the Delhi High Court on the question of criminalising marital rape has reignited the controversy over legal protection for disregard of consent for sex within marriage.

What has happened?

Justice Rajiv Shakdher, who headed the Delhi HC Bench, struck down as unconstitutional the exception to Section 375 of the IPC, which says that intercourse by a man with his wife aged 18 or above is not rape even if it is without her consent

But, Justice C. Hari Shankar rejected the plea to criminalise marital rape pointing out that any change in the law has to be carried out by the legislature since it requires consideration of social, cultural and legal aspects.

On what points did the judges differ with each other?

Difference of opinion of the judges was on key points such as

– Difficulty in getting evidence

The importance of consent

Whether the state’s concerns about safeguarding the institution of marriage were valid, and

if other laws against sexual violence protected married women, the issues involved may have to be ultimately adjudicated with the help of a third judge or a larger Bench of the High Court or the Supreme Court.

What is the stance of the Central Govt on the issue?

The Union government has been opposing the removal of the marital rape exception.

In 2016, it had rejected the concept of marital rape, saying it “cannot be applied to the Indian context” due to various reasons, not least because of the “mindset of society to treat marriage as a sacrament”.

However, in the final hearing, the Union government did not take a stand on the issue.

What are the opinions of the Delhi HC Bench?

Justice Shakdher’s opinion

He says what is defined as rape in law should be labelled as such, irrespective of whether it occurs within or outside marriage.

He finds that the marital exception violates equality before law, as well as deprives women of the right to trigger a prosecution for non-consensual sex. Besides, it also discriminates among women based on their marital status and robs them of sexual agency and autonomy.

Justice Hari Shankar’s opinion

In contrast, Justice Hari Shankar’s opinion, somewhat disconcertingly, de-emphasises the element of consent and highlights the importance of preserving the institution of marriage to such an extent that he holds that any legislation that keeps rape out of a marital relationship “is immune to interference”.

Way forward

If marriage is regarded as a partnership between equals, an exception in a 162-year-old law should have had no place.

While there are other laws governing civil relationships that legitimise conjugal expectations, these cannot be seen as giving a free pass for violence within marriage, which is essentially what sex without consent is.

Whether the legislative route is more appropriate in making marital rape a criminal offence is a matter of detail.

What is important is that sexual violence has no place in society, and the institution of marriage is no exception.

Source: This post is based on the article “On marital rape: The importance of consent” published in The Hindu on 13th May 22.

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