Continuing to hear the most debatable topic, Delhi High Court on Tuesday raised questions over the rationale of discriminating the married and unmarried women when it comes to the non-consensual sex and their dignity.
The two judge bench comprising Justice C Hari Shankar and Justice Rajiv Shakdher asked how a man forcing himself on a woman, without her consent, violates an unmarried woman’s dignity but the same act is presumed to have no impact on a married woman’s dignity.
“Jurisdiction after jurisdiction in the world has held that merely because you are married, it is not enough to say [rape] is not an offence. Have 50 countries got it wrong?” the bench asked.
Delhi High Court has been hearing the petitions filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, one man and a woman. In a case 2017 where a 27-year old woman had accused her husband of rape has also been tagged in the petition.
Why Marital Rape Is Not A Crime In India? Why It’s Legal for Indian Men To Rape Their Wives?
There are several laws that have been formed to protect women. But marital rape is still a societal evil which has long been a controversial topic.
Rape is an offence but not when you are married to the perpetrator. Exception 2 to Section 375 of the Indian Penal Code is the reason behind this.
Section 375 of IPC defines the rape and consent concept but also signifies that the law is not applicable to the married couple. Exception 2 to the Section 375 of IPC reads, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
Following a 2017 judgment, the age was changed from 15 to 18 for a married woman. However, that case dealt exclusively with cases of child marriage, and not with the wider issue of marital rape.
Advocate Nandita Rao, appearing for Delhi government, submitted that the exception does indeed withstand constitutional scrutiny. According to her, the exception does not violate Article 21 since the woman is free to file a complaint under other provisions of the law, such as Section 326 (grievous hurt), Section 377 (unnatural sexual offences), and Section 498A (cruelty).
“Imagine a woman going through her menstrual cycle. Partner says I want to have sex today and she says no I can’t, I am not in condition. He then brutalizes her. You are saying he will be charged with other Sections but not 375. That is precisely what we are testing. If for a live-in partner, this is an offense under 375 then why not for the husband? The thrust and rationale is that relationships cannot put the same offense on a different pedestal. The woman remains a woman,” the bench said.
Two Fold Argument By Nandita Rao
Earlier, Advocate Rao had presented her two fold argument before the court which included whether the exception is ultra vires the Constitution and secondly, whether striking it down would create a new offence.
She submitted, “There is no dispute that a woman has full right to bodily integrity and a right to say no and just because Section 375 does make this act by a husband a criminal offense does not mean that wife has no right to say no. A wife has a remedy to divorce on the grounds of cruelty. She can also register a complaint under 498A.”
Advocate Rao went on to add, “It is humbly submitted that exception to Section 375, while not criminalizing the act of unwilling intercourse with a spouse does not compel a wife to remain with or have sexual intercourse against her will with her husband. She has the remedy of divorce on the grounds of cruelty (under personal law) and she has right to register a criminal case under Section 498A of the IPC.”
She also mentioned what the Supreme Court has specified. “The Supreme Court clearly said that we don’t have the power to create a new offense because Courts do not have the machinery of the legislature,” she said.
The bench said it would deal with this argument later and the only question before it was that the exception creates a firewall and it will test whether that firewall stands the Constitutional test and judicial review. If it finds any provision unconstitutional, that can be struck down, the bench added.
Submissions By Petitioners’ Counsel Raghav Awasthi
Advocate Raghav Awasthi mentioned the judgment by Philippines Supreme Court and also drew attention to fact that even Pakistan penalises the marital rape.
Stating that Indian being a member of United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (UN-CEDAW), “My argument is since India is also a signatory to this treaty this should be upheld. I understand that this only has a persuasive value but there are some judgments of the Supreme Court and Delhi High Court as well where it has been laid down that when there is a vacuum in the national legislation, the international treaty obligations can actually fill that vacuum.”
Advocate Karuna Nandy has already made the submissions on Monday.
