On marital rape, regressive notions undermine autonomy of women 

News: Recently, two judges of the Delhi High Court handed down separate judgments on the constitutional validity of the “Marital Rape Exception” under Section 375 of the IPC in RIT Foundation v Union of India Case.  

What is the law? 

Section 375 defines “rape” as when a man has sex with a woman without her consent. However, a husband having sex with his wife, regardless of consent, is not construed as marital rape. The husband can’t be prosecuted for the rape of his adult wife. 

Argument in favour of the marital rape exception by one judge 

First, Sex within marriage has been carved out (by exception) from the definition of rape. Only in the absence of that exception, non-consensual sex within marriage would be seen as a rape. 

Second, the marital rape exception is constitutionally valid. This is because the marital rape exception was “aimed at preservation of the marital institution, on which the entire bedrock of society rests”.  

Third, the martial rape exception should prevail because the impact on a woman who is raped by her husband cannot “be equated with the impact of a woman who is raped by a stranger”.  The “disagreements” in marriage are “but natural” and “may even lend strength to the marital bond”.   

Fourth, at present, “majority of Indian women” are reluctant to file a complaint of rape against their husbands. There will be tens of thousands of rape complaints after the marital rape exception is declared unconstitutional. 

Fifth, the court is not empowered to create a new offence. It means the court is not competent to strike down the marital rape exception that has already been carved out of an existing offence in the law. It would be unfair to punish someone for rape for conduct that was excluded from the definition of rape when it was undertaken.  

Argument against marital rape exception

The marital rape exception is in violation of the rights to life, equality, non-discrimination, and freedom of speech and expression which are guaranteed under the Constitution of India.  

There is no reasonable basis to distinguish between married and unmarried women. Marriage is a relationship of equals. The marriage does not lead to giving up of agency and sexual autonomy. 

The institution of marriage cannot be preserved at all costs. For example, when a man has non-consensual sex with his wife. 

If a woman is raped by someone in whom you have reposed trust is likely to have an indelible emotional impact. It is difficult to understand how non-consensual sex can ever strengthen a marriage. 

Even if a woman is reluctant to file a case, it does not mean that the woman should be disempowered to do so by the operation of the law.  

Way Forward 

The court should declare that its judgment will apply only to conduct after the date of the judgment. 

The Parliament should revisit the marital rape exception. This would be the path of least resistance.  

It is incumbent on courts to take decisions concerning complex social issues. As the marital rape exception violates fundamental rights under the Constitution of India. Therefore, it falls within the Court’s core competency. 

Source: The post is based on an article “On marital rape, regressive notions undermine autonomy of women” published in the Indian Express on 20th May 2022.