Sexual Assault By Husband Needs To Be Called Rape: Delhi High Court Judge

While striking down the marital rape exception in the Indian Penal Code, Justice Rajiv Shakdher of Delhi High Court Wednesday said that the immunity to the husband is “steeped in patriarchy and misogyny” and sexual assault by the husband on his wife needs to be called out as rape and non-consensual sex in a marriage is an antithesis of what matrimony stands for in modern times i.e. the relationship of equals.

Justice Shakdher, who headed the division bench which delivered the split verdict on the issue of criminalisation of marital rape, stated that legitimate conjugal expectations cannot be put at par with the husband enjoying “unbridled access and/or marital privilege” and a married woman's right to bring the offending husband to justice needs to be recognized.

“Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim,” he said in his 193-page judgement.

The judge asserted when the object of Section 375 (rape) is to punish offenders, the classification between married and unmarried couples in the context of forced sex is “unequal”, “manifestly unjust” as well as “oppressive” and that to keep away the law even when a woman is subjected to forced sex by her husband by drawing a distinction between “private and public space”, is to deny her the agency and autonomy that the Constitution confers on her.

He opined that the present rape law is “completely skewed insofar as married women are concerned” and to say that the law provides an aggrieved married woman “other remedies” is “no answer”.

“The State appears to have stopped short of conferring the right on a woman to call out an offender who happens to be her husband when he subjects her to rape... Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender. Oddly, the prevailing mores in society appear to stigmatize the victim rather than the rapist,” Justice Shakdher said.

“Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals,” he added.

Justice Shakdher also noted that he did not advert to the submissions of the Central Government or the Delhi government as while the former did not “take a stand” in the matter, the latter withdrew its submissions subsequently.

“A married woman's right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long. Deifying women has no meaning if they are not empowered. They are our equal half; some would delightfully say our better half. It is time that all stakeholders bite the bullet,” he said.

The judge also considered the history of the marital rape exception, saying that “a plain reading of which will disclose that it is steeped in patriarchy and misogyny”.

“In fact, I would go further and say that MRE (marital rape exception) has contributed to diminishing the freedom won by human beings from slavery and the struggle that they experienced in removing discrimination on account of colour, creed, ethnicity, and sex,” he added.

The judge, while holding that the exception was violative of Articles 14(Equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), 19(1) (A) (right to freedom of speech and expression) and 21 (right to life and personal liberty) of the Constitution, also rejected the contention that a solution can to found after the Executive's “consultative process culminates in a legislative intervention” and said "shunning responsibility" and leaving it to the Executive and the Legislature would constitute abandonment of the duty and the role which the Constitution has defined for the courts.

He also turned down the apprehensions concerning the filing of false cases against husbands, saying that the argument is “completely unmerited” and “lodgement of false cases is not confined to rape”.

“To my mind, self-assured and good men have nothing to fear if this change is sustained. If I were to hazard a guess, those amongst us who want the status quo to continue would perhaps want to have the MRE struck down if the victim involved was his/her mother, sister, or daughter,” said the judge who also dismissed contentions that marital rape would be difficult to prove and that striking down the exception would create a new offence.

“The argument that the State has recognized other forms of sexual offences and, therefore, to protect the familial structure, it does not wish to go further (i.e., empower a married woman to trigger the criminal law when her husband subjects her to rape) amounts to giving recognition to the abominable Common Law Doctrine that a married woman is nothing but chattel who loses her sexual agency once she enters matrimony,”

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