India marital rape: Delhi high court’s split verdict sparks outrage after failing to outlaw colonial-era law

Women’s rights groups in India have slammed as “bizarre” a Delhi High Court ruling that failed to give a decisive verdict on the criminalisation of marital rape.

The petitioners have vowed to move the Supreme Court after one of the two judges who delivered the verdict upheld the exception in the law protecting men from criminal prosecution for having non-consensual intercourse with their wives.

Justice C Hari Shankar on Wednesday refused to strike down the exemption under Section 375 of the Indian Penal Code, which says that sex “by a man with his own wife, the wife not being under eighteen years of age, is not rape”.

Justice Rajiv Shakdher, however, disagreed as he read down the exception, saying the “right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty”.

Calling “legitimate expectation of sex” an “inexorable” aspect of marriage, Justice Shankar in the 393-page split judgement said: “Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred.”

“Introducing, into the marital relationship, the possibility of the husband being regarded as the wife’s rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law,” said the judge.

“The daughter born of such an act would, if the petitioner’s submissions are to be accepted, be a product of rape,” the judge said, adding that the consequence of accepting these submissions would be mind-boggling.

“Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling. Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute.”

The judgement came as a huge setback for those campaigning for changes in the law and drew widespread backlash from feminist groups.

Karuna Nundy, the petitioners’ lawyer, said they will challenge the decision before the Supreme Court.

Kirti Singh, the legal adviser and vice president for All India Democratic Women’s Association, one of the petitioners in the case, told The Independent that she was disappointed with the verdict.

“We are happy that at least one judge has agreed with us,” she said as she reaffirmed the organisation’s stance on marital rape. “We see it as a grave act of violence and it should be addressed.”

She added: “Rape within marriage is the same as rape outside marriage. I don’t see why a distinction has been made. Just because you marry somebody, you don’t give them unlimited rights to your body.”

Arguing that “most countries have scrapped this law”, Ms Singh said there is nothing “so special about Indian husbands” that they should get such an exception.

Kavita Krishnan, the Secretary of All India Progressive Women’s Association, slammed the observations made by Justice Shankar saying it highlighted that Indian women’s rights were “hardly more secure in constitutional courts of the land than they are in the household where the family patriarch’s word is law”.

Arguing that while a spouse may indeed have an “expectation of sex” within marriage, she said that if it is “not fulfilled, the aggrieved spouse has the option of divorce – not the right to fulfil the expectation by force!”

“A spouse in fact has every right to deny sex without having to offer reasons, since she is not a sex slave,” said Ms Krishnan. “The judge is saying that even if the husband has sex with the wife without the latter’s consent he cannot he considered her rapist since this would call into question the sacred nature of the marriage institution. This is bizarre reasoning.”

“We know that marital violence is a grim and widespread reality in India: does this reality call into question the idea of marriage being sacred? If a husband beats his wife, is it really unimaginable that he might rape her? Does a woman have to surrender her dignity and bodily autonomy when she marries? Does she become the property of her husband?” she asked.

“This judgment, while not surprising, is nevertheless shameful.”

Amita Pitre, the lead specialist in gender justice at Oxfam India, called the verdict “unfortunate” as she argued that “exception for marital rape creates a category of second class citizens, which means married women are not equal before law”.

“One of the main reasons for persistent subordination of women has been the inordinate importance given to the institution of marriage and that it be held ‘sacred’ and upheld at any cost,” she told The Independent.

“An institution cannot be above individuals and their welfare. Rape falls along the continuum of sexual violence and hence there is no reason to single it out and give married men impunity against it.”

“Colonial criminal law is based on a three-fold understanding, that the woman is a man’s property, that the institution of marriage is sacrosanct and that procreative sex within marriage is the only form of legitimate sex, legitimate even if the woman does not consent to it,” she explained, adding that this conception was also internalised by a conservative society.

“This creates a license for sexual violation, which is unacceptable,” Ms Pitre concluded. “It is not in keeping with the modern-day understanding of human rights, and the fundamental rights conferred by the constitution.”

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