In preliminary remarks, Justice C Hari Shankar, as part of a division bench, tested claims and submissions made by a batch of petitions seeking to criminalise sex without consent in a marriage as ‘marital rape’.
The court said while there can be no compromise with women’s right to sexual autonomy and any act of rape has to be punished, the “qualitative difference” is that in a marriage, unlike a live-in or a relationship, a spouse has an expectation and “to an extent a legal right” to establish conjugal/sexual relations with the partner.
“That qualitative difference has a part to play in why that exception is there… we must appreciate the reason why it remains on the statute books despite the Verma Commission and Law Commission. For 150 years, the legislature has kept it,” Justice Shankar said, underlining that petitioners have to show pressing reasons why HC should strike down a provision.
Adding a rider that these are not his firmed up views but only preliminary line of inquiry, Justice Shankar said one reason for Parliament keeping the exception intact might be the manner in which rape as an offence is defined in Section 375. “It is a wide definition, it says even a single instance of unwilling sex with unwilling party is rape,” he said.
“Let’s take a newly married couple. On a particular day, wife says no… If for third day it happens, the husband says ‘am walking out’ but wife gives in. Do we categorise it as rape? He is exercising what he believes to be his conjugal right. It is rape if we knock off the exception,” the court said.
“There is no compromise with a woman’s right to sexual and bodily integrity. A husband has no business to compel. (But) the court can’t ignore what happens if we strike down the exception. The husband goes to jail for 10 years if he does this even on one occasion… We need a much more incisive insight into the issue,” the judge said.
Justice Shankar also expressed his reservations with use of the term “marital rape”, saying that calling it rape to define any form of an unwilling sexual relationship between a husband and a wife is “a kind of pre-decision”.
“There is no (concept of) marital rape in India… If it is rape — marital, non-marital or any kind, it has to be punished. Repeated use of the word, according to me, obfuscates the actual issue,” he said.
The bench headed by Justice Rajiv Shakdher — who stated he would “reserve” his “comment” and clarified the court was just having an open discussion — was hearing PILs filed by NGOs RIT Foundation and All India Democratic Women’s Association.
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