Image Description: On a sheet of paper, the phrase ‘Non-consensual Sex is Rape’ is written. There is an asterisk next to this phrase. Below this phrase, in a much smaller font, next to an asterisk, the words ‘conditions apply’ is written. 

On 11th of May 2022, the Delhi High Court, delivered the much-awaited judgment on the marital rape exception (MRE). The exception to the criminalisation of rape in section 375 reads: ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.’ In 2017, in Independent Thought v Union of India, the Supreme Court partially read down this archaic and regressive exception, finding that a husband who rapes his minor wife cannot be exempted from prosecution.

Now in 2022, the Delhi High Court was considering the exception in its entirety and was deciding on whether this exception is unconstitutional. In a disappointing split verdict, one of the judges, Justice Rajiv Shakdher, held the exception is unconstitutional and another judge, Justice Hari Shankar, held the exception is constitutional.

In the first post, I will be discussing Justice Rajiv Shakdher’s verdict. His judgment notes that that the marital rape exemption is steeped in patriarchy and misogyny and emphasises that the classification between married woman and unmarried woman is unreasonable and arbitrary. He underscores the legal absurdity of this provision. An unmarried woman who is the victim of the offence of rape stands legally protected, but ‘the same regime does not kick-in if the complainant is a married woman.’

He makes an astute observation that ‘conjugal expectation’ cannot be read to mean a man has ‘unfettered right to have sex without consent of the wife’. The MRE has been described as necessary to save the institution of marriage. Justice Shakdher’s observes that by accepting this rationale the Court will be treading into a dangerous territory of considering the married woman as nothing but ‘chattel who loses her sexual agency once she enters matrimony.’

The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, and he holds that this right should be protected, irrespective of the relationship she has with the accused. To ensure that women have agency over their bodies, it is crucial to strike down this exception. He holds this exception to be unconstitutional and violative of Article 14 (equality), Article 15 (non-discrimination), Article 19 (1)(a) (right to freedom of expression, which includes a woman’s right to assert her sexual agency and autonomy) and Article 21 (right to life and liberty). In a similar vein, he holds section 376B (Sexual intercourse by husband upon his wife during separation) to be unconstitutional as it prescribes lesser punishment and lays emphasis on the need to deal with separated husbands in the same way as any other rapist.

While this verdict makes several pertinent observations, at certain places, the language he uses can be misleading. At several places, he refers to non-consensual sex as ‘forced sex’. The terminology of ‘forced’ is disturbing as passivity or lack of resistance to a sexual act cannot be construed as consent. Is this a mere oversight or a deliberate choice? Either way, this term can be easily misconstrued by courts.

Another concern with this verdict is the comparisons with sex workers, with Justice Shakdher observing that sex workers are invested with the power to not consent to sex but married women do not have this same power with respect to their husbands.  Why the specific comparison with the sex worker? Why not just compare to any unmarried woman? It is possible that the judge used this comparison as the counsel referred to this example. Even if the counsel refers to such examples, it is important that judges stay away from such comparisons which reek of moral judgment.

Thus, the striking down of the exception by Justice Shakdher is a welcome move. But the language of this judgment is not entirely blemish free and still reveals some shades of patriarchal attitude towards women and their sexuality.

Part II of this blog (available here) discusses Justice Hari Shankar’s verdict.