Forced Sex By Husband On Wife Should Be Labelled Rape; Right To Withdraw Consent Part Of Woman's Right To Life & Liberty : Justice Rajiv Shakdher On Marital Rape

Delivering a split verdict in pleas seeking criminalisation of marital rape, Justice Rajiv Shakdher of Delhi High Court, who ruled in favour of striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that sexual assault by the husband on his wife which falls within the fold of sec. 375 of the Indian Penal Code needs to be called out as rape."Oddly, the prevailing mores in society appear to stigmatize the victim rather than the rapist," Justice Shakdher observed further, while adding that the fact that certain ingredients of the offence covered under sec. 375 are found present in other provisions of the IPC does not provide a satisfactory answer as to why a sexual assault which is synonymous with rape should not be labelled as rape when the offence is committed on an adult married woman by her husband. Therefore, Justice Shakdher agreed with the submissions put forth by Advocate Karuna Nundy, who appeared for two petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA), that the sexual assault which falls within the four corners of sec. 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage."Certain sexual offences need to be called out for what they are. 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. Therefore, I agree with Ms Nundy that the sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage." The Judge further observed that what needs to be emphasized is that the State, as a representative of the society, shares the responsibility to deprecate and punish sexual abuse or violence of every form. "This responsibility, cast on the State, extends beyond interpersonal space ordinarily available to a married couple where there is no violence. Thus, when the State exempts criminal acts such as forced sex within marriage, it unwittingly engages in unequal disbursement of rights conferred by the Constitution. Consequentially, those, who commit the offence i.e., the husbands do not suffer the rigour of the law and those, who are victims, i.e., the wives get no protection from the law," the Court said.Violative of quality clause and Article 21While holding that the marital rape exception falls foul of the equality clause of the Constitution, the Judge concluded that the same violates Article 21 of the Constitution. "The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is. The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. 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," Justice Shakdher added.Consensual sex is at the heart of healthy and joyful marriage; Non-consensual sex antithesis of modern matrimonyHe observed:"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. The right to withdraw consent at any given point in time forms the core of the woman's right to life and liberty which encompasses her right to protect her physical and mental being.""Non-consensual sex destroys the very core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred."Freedom of expression includes woman's right to assert sexual agencyThe judge opined that the exception is also violative of Article 19(1)(a) of the Constitution, as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country.The guarantee of freedom of expression includes a woman's right to assert her sexual agency and autonomy.Justice Shakdher further added that what makes the continuance of the marital rape exception on the statute...

Forced Sex By Husband On Wife Should Be Labelled Rape; Right To Withdraw Consent Part Of Woman's Right To Life & Liberty : Justice Rajiv Shakdher On Marital Rape

Nupur Thapliyal

"To my mind, self-assured and good men have nothing to fear", Justice Shakdher said.

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