Marital Rape : Delhi High Court Continues Hearing Petitions Challenging Exception To Section 375 IPC

The Delhi High Court on Monday continued the hearing of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts marital rape from the offence of rape.A bench comprising Justice Rajiv Shakdher and Justice C Hari Shankar heard Advocate Karuna Nundy on Monday. During the hearing, the bench discussed the possible legislative reasons for the exception to Section 375 IPC.Justice Shankar remarked thus:"The legislature in Section 375 - we must also appreciate the reason why this provision is still remaining on the statute book despite so many Verma Committee Commission and law commission reports. I don't think we should be carried away by what Lord Hales said. We have gone much beyond what he said.""One possible reason why it is in the statute book may be because of the manner in which rape is defined in Section 375. It defines rape in a very wide manner. It says even a single instance of unwilling sex with opposite party is enough to call it rape. Let us take a hypothetical situation where there is a couple who is newly married. The husband one day wants to have conjugal relations with the wife. Wife says no. Husband says if you don't allow me, I am leaving the house and going. I'll see you tomorrow morning. If we are to knock off this exception, this is rape. One argument is raised that there is no intelligible differentia between a situation where the couple is married and where the couple is not married. On that, with great respect, I'm not really in agreement. There is a reason for that. If a boy and a girl are not married, howsoever close their relationship may be, boyfriend or girlfriend or Live- in, neither of them has any right to expect sexual congress with the other. The law doesn't recognize any right. Therefore, there is an absolute right on each party to say I will not have sex with you. If the other party agrees, it's a matter of accommodation. In a marital relationship, there is a qualitative difference. There is an expectation of a conjugal relationship of both parties.""When a party gets married, each has an expectation and to an extent a right also. Because if it is denied, it can lead to civil consequences also, it can lead to divorce. So there is an expectation and at least a social and legal right to expect normal sexual relations with your partner which doesn't exist if there is no marriage. There is a qualitative difference in a case where the parties are married and where they are not married and I feel prima facie that this qualitative difference has a part to play in that exception been engraved into sec. 375."Justice Harishankar, while commenting prima facie that marital rape must be punished, added that there is a qualitative difference between cases where the parties are married and where they are not married and that prima facie, this qualitative difference might have a part to play in the exception that been added into Section 375 IPC"Marital rape according to me should be punished, prima facie. There should be no doubt about it. Women's sexual autonomy, bodily integrity, right to say no, there can't be a compromise," Justice C Hari Shankar said."We are not here on whether marital rapes should be punished, we are on the question as to whether in such situation this man should be held guilty of rape".Justice Harishankar further said:"If the legislature feels that where parties are married, we should not categorize this as rape as it would be categorised in a case where parties are unmarried. If the parties are unmarried and the man says I want to have it, then it is a matter of force. You are not exercising any right which is socially or legally in any manner given to you. Here the man is exercising what he believes to be the conjugal right. If the legislature has thought that in a marital relationship, because of qualitative difference of the relationship, we should not categorize this as rape, I am not on the question whether it should be punished or not."Justice C Hari Shankar said that the issue was whether to strike out the exception under Section 375 IPC. "There is no concept of marital rape in India. The moment we use this expression marital rape, it's something that I had exceptions to on the very first day and I continue to do so. The moment you call it rape, you come into sec. 375 IPC. If it is rape, it has to be punished, marital, non-marital or any kind. This repeated use of the expression marital rape is something which according to me obfuscates the actual issue before us. What we are concerned with here is the exception to sec. 375. The legislature has excepted from sec. 375 a situation where parties are married. We have to see whether there is a case made for striking out this exception or not. That is the issue," he said. Furthermore, he added that the question as to whether the provision should be struck down as unconstitutional or not, there are well-settled...

Marital Rape : Delhi High Court Continues Hearing Petitions Challenging Exception To Section 375 IPC

Nupur Thapliyal

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