Women activists disappointed with Delhi HC verdict on marital rape criminalization, bestow hope in SC

The Delhi High Court’s split verdict on the criminalisation of marital rape is a “tragedy”, but “still a step forward”, said several women activists who expressed hope that the Supreme Court would take a broader look at the issue so that married women are not discriminated against while applying the existing rape laws.

Saying that this was an expected verdict, women’s rights activist Brinda Adige opined that the High Court probably did not want to give a definite verdict as several Parliamentarians had been making statements for a long time that having a law which specifically addresses marital rape would break families.

A two-judge bench of the High Court on Wednesday passed a split verdict on petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forced sexual intercourse by a man with his wife from the criminal offence of rape.

Justice Rajiv Shakdher adjudicated that the exemption given to a husband from the offence of marital rape was unconstitutional, and he struck down exception 2 of Sections 375, 376B of the Indian Penal Code (IPC). He said it was violative of Article 14 of the Constitution, which guarantees equality before the law. However, Justice C Hari Shankar held that exception 2 of Sections 375, 376B of the IPC did not violate the Constitution.

Feminist and queer rights activist Chayanika Shah expressed surprise at the judgement. She said that it was strange that one judge thought it was unconstitutional and the other didn’t think so. To her, it meant that they were not testing the question of rape vis-à-vis the Constitution.

“It is being tested on the notion of marriage that the society holds. According to me, the constitutional understanding of marriage should also be as per the basic fundamental rights given in the Constitution and not according to the norms in the society,” she said.

Marital rape should be on the statute, Shah said, saying that marrying someone doesn’t mean that consent for sex is given permanently as consent has to be negotiated even within marriage.

Several women had expected the judges to give a joint verdict. “We thought both the judges would see in the same way and it is unfortunate that there is a split verdict. It’s a long struggle. Even now, we are still not able to accept the fact that marriage gives a husband the right to indulge in non-consensual sex with his wife,” said Mariam S Dhawale, general secretary of All India Democratic Women's Association, one of the petitioners in the case.

Dhawale said they would study the verdict, but underscored that they would have to go to a higher court.

Saying that the verdict was a “tragedy”, a member of women's group Saheli Vani Subramanian observed that the court hasn’t said that marital rape isn’t happening. “It is simply saying that we can’t acknowledge that it has happened. That is the real tragedy,” she said.

Women’s rights lawyer and co-founder of the legal and cultural resource centre Majlis, Flavia Agnes has a slightly different view. The split verdict ensures that the matter will reach the Supreme Court, said Agnes, and that would have a better impact than a High Court verdict.

“Overall, one judge has said that it is unconstitutional, so the Supreme Court is most likely to uphold that. So, in a way, it is one step forward,” said Agnes.

Agnes also said that the focus on this law meant that only sexual violence is being concentrated upon and all other kind of violence that happens in a family gets excluded.

“I have an overall problem with the exception as I think there should be laws to criminalise other forms of violence in marriage. I want to make the law broader so that it looks at what is the extent of injury caused too. The extent of violence in marriage doesn’t fall only in the sexual act, but happens in all other spheres of domestic life too. This is a good time to look at that too,” Agnes added.

Agnes said Section 498A of the IPC, which deals with cruelty to a woman for dowry, defines it as anything that is likely to cause a woman to die by suicide. “But the law doesn’t describe the extent of violence and this means judges can say that there is no ‘threat to life’. Who is to decide the level of mental or physical torture that may cause the woman to die by suicide? At what point does she break? Should a woman be dead before she can approach the court?” asked Agnes.

Noting that the Domestic Violence Act is a remedial Act, Adige pointed out that when men’s rights activists state that women can take recourse under this Act, they do not seem to understand that it is only a remedial Act. The Act doesn’t penalise. It talks about a certain amount to be given by the husband to the wife when there is a case of “severe physical assault”, but to date how many have even gotten that amount from courts, asked Adige.

“People can talk about sexual violence, emotional violence and verbal violence in a marriage, but Section 498A talks about cruelty in marriage over a period of time. The laws do not address the issue defined as rape by our law in a marriage. That is what we are asking for when we are asking for a law for marital rape,” noted Adige, who was in support of the law expanding its ambit.

Under the Domestic Violence Act, the complainant has to go to court, said Adige, but in most cases, people go to the police, where both the parties are ‘counselled’.

She remarked that people point out that when a case of rape is slapped on a man, then there is no chance of reconciliation between the husband and wife. Turning this argument on its head, Adige said that for years, the society and courts have been asking women who have been raped to marry their rapists. “So, how did they decide that they would be able to live happily. In their patriarchal minds, they want to understand how can you talk about your spouse or partner raping you, because what else is a woman there for? They do not want to understand it because of the patriarchal structural stereotypical positions they want to take.”

A verdict such as this asserts that in case a woman in the family is beaten up or thrown down a staircase, it will be considered as domestic violence, but if she is raped, it is not, argued Subramanian.

“That is essentially problematic. Violence is violence and the courts need to see it as that. It is also violence if your legally-wedded husband does it to you. There is so much anxiety about keeping a family together that they are ready to say that women must pay the price of it. And they keep saying men don’t understand consent,” said Subramanian.

She said that men only seem to not understand the concept of consent when the question of a woman’s body arises. “They need to understand that even after marriage, a woman’s body is her own and she has the right to consent to a sexual act or not. But, suddenly because a woman has been married, it is considered as a life-long consent. In criminal law, we have moved ahead to understand what is rape. But, the other part of the law doesn’t want to move forward,” she said.

Mentioning the crux of the matter, Shah stated as the Constitution gives every citizen in this country a right to not be discriminated against, it should follow that the citizen should not feel violated too. That right must be given to a wife and cannot be taken away from her.