Split Verdict on Marital Rape

In Context

• The Delhi High Court ruling gave a split verdict on several petitions in a case challenging the validity of the marital rape exemption under section 375 of IPC which has led to the public debate over the course of law.

Background

• Societal divide: The present law manifests the stark public divide on the issue that involves deeper social questions regarding individual rights, right over the body, and the right to live with dignity.
• Bias towards men: Exception 2 of Section 375 provides for an exception for married men, saving them from prosecution for a non-consensual sexual act in their marriage. 

• Exemption says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.

Two opposite spectrums of the verdict

• The opinions of the two judges’ bench of the Delhi High Court are fundamentally different on issues pertaining to consent.
• Equality based: Justice Shakdher verdict was premised upon the notion that the foundation of a modern marriage is equality between spouses hence the marital rape exemption should be done away with.
• Status-quo: Justice Shankar’s verdict was premised on the idea that marriage necessarily involves surrendering certain rights in varying degrees in this case, the right of a woman to her bodily integrity. His observation ignores basic principles of equality, agency and autonomy.

Government’s stance

• State of dissonance: Both the Delhi government and the Central Government have opined that it is not worthwhile criminalising marital rape without building societal consensus.
• Disturbed marriages: They have furthered arguments that exemption should not be done away with, otherwise it will be detrimental to the institution of marriage thus disturbing the social mores.
• Potential misuse: Another argument advanced was that doing away with the exemption would lead to an increase in the misuse of the law.
• These concerns are however not entirely unfounded. There should be wider and more participatory deliberations on them.
• However, the central government’s stand that the marital rape exception will be reviewed is a progressive and a welcoming step.

Arguments for status quo

• Destabilise the institution of marriage: It may create troubles within families thereby destabilising the institution of marriage.
• Potential misuse of the law: It may become a potent tool for harassing men by misusing the law. Many false cases have come to light with respect to Section 498A (Husband or relative of husband of a woman subjecting her to cruelty).
• Diversity in India: India has certain peculiar problems attributable to various factors like varying literacy, lack of financial empowerment of women, societal mindset, vast diversity, and poverty. Any knee jerk law without proper public consultation can face backlash.
• Sociological conditioning: Merely criminalizing marital rape may not stop the crime. India still sees innumerable cases of rapes, and domestic violence despite laws in place. Rather a social reengineering should be given an impetus by the government and the civil society so as to stop such menaces.

Arguments against the ‘Exception’

• Ensuring dignity of women: It will ensure that women remain safer within the confines of their homes.
• Patriarchal tinge: The exception to the law has a bias towards men. This should change to make women co-equals in marriage.
• Inconsistency of two laws: The important question to ponder is how unmarried women’s rights are different from that of married women? In the former case, the culprit can be prosecuted for sexual harassment or rape while in the latter, he is not.
• Bodily Integrity under Article 21: Women should have agency over their bodies and they alone should be the agency of it without surrendering it to their spouses.
• Article 14: The exception is also in contravention of article 14 i.e., equality before the law.
• Torture for Life: An abusive spouse is a trauma for life thus being detrimental to a woman’s social, psychological and bodily wellbeing.

Laws in other countries

• Countries including the UK, South Africa, Australia and Canada have removed the exception in marital rape.
• India inherited the law from the British system. Britain has already repealed the law along with other former colonies like South Africa. 
• Hence India too should try breaking the status-quo.

Way Forward

• The split verdict has not removed the status quo but has set the ball rolling for good.
• There should be wider consultations and deliberations on the issue eliciting views of civil society, legal experts, sociologists and other relevant stakeholders
• Justice Shakdher’s opinion is a testimony that the exception is at odds with the Constitution and certainly requires rethinking.
• The government has decided to review the exception. It should go ahead with the review and if need be, should change the status quo. This will also be upholding the doctrine of separation of power and not letting the judiciary transgress its domain.

Societal ethos are not in perpetuity. If they are in contravention of modern-day values of a just democracy then they should be changed for good.