The Delhi High Court resumed hearings on Tuesday and Wednesday on petitions to remove the marital rape exception in the Indian Penal Code. The last hearing had taken place in December 2017, when the bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar had noted that the issue had huge ramifications, and appointed senior advocate Raju Ramachandran as amicus curiae to assist with it.
The petitioners in this case – RIT Foundation and the All India Democratic Women’s Association (represented by Karuna Nundy) and a survivor of marital rape (represented by Colin Gonsalves) – have argued that the marital rape exception is unconstitutional, and that the court can therefore strike it down without intervention by the Parliament.
The Centre has opposed the petitions, arguing that if marital rape were to be a criminal offence, this would destabilise the institution of marriage and become a fresh tool to harass married men.
The next hearing will take place on 8 January.
Studies Show That Significant Number of Men Indulge in Marital Rape
The Delhi High Court had asked the petitioners about whether there had been any studies in countries where marital rape had been criminalised on the consequences of doing so, including the number of false complaints.
Karuna Nundy cited a study which showed that 49 percent of married men in Uttar Pradesh and 26.8 percent in Rajasthan had admitted to having indulged in marital rape. Colin Gonsalves cited another 2014 study to say that, “The number of women who experienced sexual violence by husbands was 40 times the number of women who experienced sexual violence by non-intimate perpetrators.”
This showed that there was already a high incidence of marital rape in India, which is, however, barely reported.
Gonsalves also quoted a UN Women report in 2011, according to which one in ten women in India reported facing sexual violence from husbands during their lifetime.
The Marital Rape Exception Infringes on “Core Constitutional Values”
Nundy on Wednesday highlighted how the marital rape exception violated Articles 14 (equal protection of law), 15(1) (non-discrimination on grounds of sex) and 21 (right to life) of the Constitution.
She also argued that the exception fell foul of the concepts of bodily integrity and sexual autonomy, thereby constituting a violation of privacy. A nine-judge bench of the Supreme Court had recently affirmed that privacy is a fundamental right under the Constitution.
She also argued that the exception infringed on a married woman’s sexual identity and expression, which had previously been held to be integral elements of the right to freedom of speech (Article 19(1)(a) of the Constitution) by the Supreme Court in its 2014 transgender rights judgment (NALSA v Union of India).
Citing two more Supreme Court cases (Boddhisattva Gautam and Prahlad), Nundy argued that dignity and sovereignty over one's body and mind were inalienable constitutional rights. By depriving a married woman of the power to say no (and thereby, as a corollary, the power to say yes), the marital rape exception infringed on these rights as well.
Requirement of Judicial Intervention
Finally, Nundy used the Parliamentary debates on the Domestic Violence Act to indicate that the problem of marital violence and marital rape had been considered by Parliament when that law was being drafted. However, despite recommendations from a Standing Committee and a Note of Dissent in the Rajya Sabha, the Act was limited to civil remedies, which meant that there was no criminal law to deal with marital rape.
This runs counter to one of the common arguments raised against criminalisation of marital rape, that the Domestic Violence Act provides a remedy to a married women who has been forced to have sex against her will.
The petitioners have consistently argued that this differentiation between married and unmarried women ignores the aspect of consent that otherwise defines what constitutes rape under Section 375 of the IPC. On the basis of all these contradictions and violations of Constitutional values, they have argued that the court needs to intervene and strike down the exception.
In October, the Supreme Court had read down the marital rape exception to no longer include married girls between the ages of 15-18, on the basis that this was unconstitutional.
Amicus curiae Raju Ramachandran will present his views to the court after both sides finish their arguments. Raghav Awasthi, Gautam Bhatia, Megha Agarwal, Rounak Nayak and Shashwat Goel also appeared for the petitioners.
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