The Delhi High Court is expected to rule on Wednesday on a batch of petitions challenging the exception to Section 375 of the IPC, which exempts forced sexual intercourse between a man and his wife from the criminal offence of rape. Day-to-day hearings in the contentious case began in January of this year, seven years after the first petition challenging the law’s constitutionality was submitted to the court. Men’s rights organizations have filed counter-petition challenging the criminalization of marital rape on a variety of grounds.
The Delhi High Court will rule on a bundle of petitions seeking to criminalise marital rape on Wednesday, May 11. The petitions are challenging the Indian Penal Code’s rape exemption (IPC). Forced sexual intercourse by a man with his wife who is not under the age of 15 is not considered rape under Exception 2 of IPC Section 375 (rape). In layman’s terms, Exception 2 of Section 375 criminalizes marital rape or demands that forced sexual intercourse between a man and his wife in a marriage is not rape. A bench of Justices Rajiv Shakdher and C Hari Shankar will rule on the four petitions seeking to criminalise forced sex in marriage, often known as marital infidelity.
WHO ARE THE PETITIONERS?
The RIT foundation filed a petition in 2015, the All India Democratic Women’s Association (AIDWA) in 2017, Khushboo Saifi, a marital rape survivor, 2017, and a man accused of rape by his wife in 2017. At least three petitions have been brought before the Delhi High Court by men’s rights organizations opposing the criminalization of marital rape for numerous reasons, including claims of bogus cases, the potential for misuse, and harm to marital relationships and families. One intervention request also argued for a gender-neutral definition of rape to guarantee that males are not ‘unfairly attacked.’
Hearings in the RIT foundation’s petition commenced in 2015 when the Delhi High Court issued a notice to the Centre and the Delhi government. In 2016, the Centre filed an affidavit stating that criminalizing marital rape would be detrimental to Indian culture. Colin Gonsalves, a lawyer representing the RIT foundation, has raised the issue of a breach of the right to dignity. The case was deferred for more than three years before being reopened in December 2021.
WHAT IS THE PETITIONERS’ TAKE?
The petitioners in the case sought to overturn the rape law exemption. The petitioners contend that, in addition to violating the right to dignity, the clause directly infringes a woman’s right to privacy, choice, and physical autonomy, as recognised by the Supreme Court in its right to privacy decision.
Furthermore, it produces an ‘irrational categorization’ since a married woman is denied the basic freedom to say ‘no’, which an unmarried or separated woman has. It was also stated that the exemption arises from patriarchal and Victorian interpretations of the law of coverture, which states that after marriage, a woman becomes the property of her husband, and that there is no exception.
CENTRE’S POINT OF VIEW?
In 2017, the Centre filed an affidavit rejecting the petitioners’ requests, claiming that marital rape should not be considered a criminal offence since it may ‘destabilise the institution of marriage’ and become an easy weapon for harassing spouses.
In January of this year, the Centre submitted written comments in the Delhi High Court stating that criminalization ‘may unleash the floodgates of litigation’ and false claims. It further contended that various laws already exist to protect women and that there is no need to criminalise marital rape because a woman may seek remedy under the Domestic Violence Act or the IPC’s marital cruelty section. The affidavit also stated that the Indian law ‘cannot blindly follow the West’ in criminalising marital rape since it would have a ‘major social impact’.
However, on February 1, the Centre told the high court that it was ‘re-looking’ at its earlier stand on petitions seeking criminalisation of marital rape as that was brought on record in an affidavit filed several years ago. The government also stated that it had begun consultations with all states and various stakeholders since a stand cannot be taken on the issue without consultation.
WHAT DID THE DELHI HIGH COURT SAY?
While hearing the petitions, Justices Rajiv Shakdher and C Harishankar raised various queries and reservations. The court questioned whether it had the authority to overturn the clause, which would essentially ‘create a new offence’ because rape by a spouse is not punishable under present law. The court also questioned whether it had the authority to define new offences and prescribe punishment, which only the legislature has.
The judges also expressed worries about women’s rights, wondering if it was possible to deny a woman equality and the freedom to choose ‘just because of her marital status’. The bench also stated that there cannot be ‘implied consent’ since it appears to convey the ‘right to have sexual relations with partner,’ which takes away a wife’s right to say ‘no’. While reserving its judgement in February, the Delhi High Court also advised that the Centre ‘bite the bullet’ and adopt a position on the matter because the court could not ‘wait indefinitely’.
OTHER COURTS TAKE THE STAND?
While hearing a plea filed by a man seeking to dismiss accusations of rape by his wife in March of this year, the Karnataka High Court stated that marriage is not a licence to ‘unleash a terrible beast’. The landmark decision permitted rape charges to be filed against a man accused of forcing his wife to be a ‘sex slave’. ‘In my opinion, the institution of marriage does not bestow, cannot confer, and should not be perceived to confer any unique male privilege or a licence to release a vicious beast. If it is penalised by a man, it should be prosecuted by a man, even if the man is a spouse’, according to the High Court judgement.
The ‘age-old belief and custom that men are the masters of their wives, their body, mind, and soul should be effaced,’ as should the ‘archaic, regressive, and predetermined assumption’ that such instances are proliferating in the country, according to the court. However, the court stated that whether or not marital rape should be considered an offence was up to the legislature. The Supreme Court, which heard the man’s petition against the Karnataka High Court on Tuesday, rejected to suspend the court’s decision, which had refused to dismiss the case of marital rape filed against him based on a complaint by his wife.
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