Delhi High Court on Marital Rape: India does not have legislative law which protects married women from rape or forced sexual intercourse or sexual assault by the husband, their legal partner. In fact, India has Section 375 of the Indian Penal Code, which makes marital rape an exception in counting it as a sexual crime against women. The Delhi High Court on January 13 questioned this law and the judgement will continue to January 14. During the Thusrday hearing, the Central government advocate had informed the court that the state is taking “positive steps” on the issue.
On Thursday, Justice Rajiv Shakdher made an observation on the sheer disservice that the exemption under section 375 does to the rights of a married woman on her own body. Although, he emphasised his observation by comparing married women rights with that of a sex worker and said that if the latter can say no then why a wife is placed on “a lower pedestal?”
This observation was made and said aloud during the hearings of arguments overseeing a batch of petitions which demanded the criminalising of marital rape. Under Exception 2 in Section 375 of the IPC, the exemption is made to the man who forces himself sexually on his wife, only if the wife is not below the age of 15 years.
Justice Shakdher and senior advocate Rajshekhar Rao took the example of sex workers and her right to say no even though they are considered “unchaste or easy virtue” by society. He said, “…So a sex worker actually shines the light on a circumstance which is sought to be protected by the exception. The idea of someone entering into a bargain and then saying, ‘sorry, I don’t want to go with it’ and she can prosecute the person who imposed himself is something that requires to be considered in light of the circumstances in which the husband and wife are placed.”
However, his observation was interrupted by advocate Karuna Nundy who said that even with a sex worker there is an expectation of sex same as marriage. Justice C Hari Shankar on the other hand said that one cannot equate the two (sex workers and married women). He said that section 375 does not say forced sex in a marriage should not be punished. “The question is should it be punished as rape?” asked Justice Shankar.
No country for married women
Last year, when Gujarat High Court was hearing a Public Interest Litigation (PIL) against marital rape laws, the petitioner, Sahil Thakore had stated in his plea that the exemption granted to husbands is based on the Doctrine of Converture which states that a woman loses her individual identity and is regarded as husband’s property after marriage. Thakur further stated that this law is against the Indian Constitution, which treats man and woman as equals, and violates Articles 14, 15, 19 and 21 of the Constitution.
These articles state the right to live with dignity, right to personal liberty, right to sexual autonomy, right to reproductive choices, right to privacy, amongst other rights. The Gujarat HC in its judgement said, “By marrying, no woman consents to her husband committing forcibly sexual intercourse on her.”
It is disheartening that even in 2022, women have to fight for their sexual rights, because our society still sees marriage as a holy union, which a woman must enter, feeling obligated to grant sexual consent to her husband. Consent can’t be granted once in a lifetime, for all the years of marriage or relationship to follow. Married or not, consent needs to be established and respected between a couple, irrespective of gender, every time sex is initiated.
The power of consent will grant wives not only more control over their sexuality and reproductive rights, but also normalise protesting against forced sex in a marriage.
Views expressed are the author’s own.