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. 

Part I of this blog (available here) discussed Justice Rajiv Shakdher’s verdict. In this second post, I discuss Justice Hari Shankar’s verdict, who held the exception to be constitutional. For Justice Hari Shankar, this exception is merely stating that sexual intercourse and sexual acts by a husband with his wife, is not rape. He argues that it ‘neither encourages nor sanctions or permits non-consensual sex by a husband with his wife.’ However, he fails to ask whether leaving the married woman without a remedy in case of non-consensual sex is constitutional.

He draws spurious distinctions to avoid confronting this question:

‘To urge that rape, per definition, is non- consensual sex by a man with a woman, is just as simplistic as the contention that murder, per definition, is the taking of the life of one man by another. Just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape.’

If rape is not non-consensual sex, then what is rape? According to Justice Hari Shankar, there is a clear intelligible differentia between a non-consensual sexual act with a stranger and non-consensual sexual act with one’s husband. According to him, in the latter, the husband is merely exercising a right that vests in him due to marriage and his wife is discharging ‘an obligation which, too, devolves on her by marriage.’ And what is the rational nexus to the object? But of course, it is the noble object of preservation of the marriage as an institution! In this verbose verdict, he devotes much of the 200 pages, to explain why marriage is a ‘salutary institution’ and a ‘sanctified constitutional and social goal’ worthy enough to be pursued and protected at any cost. It does not matter if the cost of it is a woman’s sexual autonomy.

Justice Hari Shankar notes that the definition of rape in section 375 ‘covers all acts, from a single act of unwilling sex to gross perversion. They are all covered under one umbrella.’ It is worrying for him to extend this provision to husbands. He casually remarks that ‘a husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?’

According to him, while deciding what constitutes rape, the relationship with the perpetrator plays a more important role than the concept of consent. He repeats the claims that it ‘would be artificial to assume that the degree of outrage felt by a wife who is compelled to have sex on a particular occasion with her husband, despite her unwillingness, is the same as the degree of outrage felt by a woman who is ravaged by a stranger against her will.’ This verdict is entrenched with statements like this, where the judge is deciding how and when a woman would and should feel outrage.

 The constant reference to stranger rape in his verdict is worrying. According to the 2019 National Crime Records Bureau data, in 94.2% of rape cases, the perpetrator is known to the victim/complainant. This distinction and dichotomy that the judge creates between stranger rape and marital rape, is something which has a high probability of seeping into other cases of acquaintance rape. The usage of such a language conveys that the Court has a rigid view of what ‘real rape’ looks like. Anything which does not fall in the category of ‘stranger rape’ is looked at with suspicion and is riddled with preconceptions and prejudices. Despite the law progressing on paper, in the courtroom, the Court struggles to grasp the many ways in which sexual violence is perpetuated against women. This is not the first time that the Delhi High Court is drawing such a distinction. In another regressive judgment, Mahmood Farooqui vs State, the same Court stressed that a ‘feeble no may mean a yes’, especially, when the concerned parties are not strangers.

Nowhere in this 200-page judgment, does Justice Hari Shankar think it is important to analyse or discuss why this marital rape exception impairs and nullifies the sexual agency of women and how it solely discriminates against women based on their marital status. In this verdict, the marriage-is-precious objective appears to triumph everything else. He pays no attention to the repeated emphasis of the counsel of petitioners that ‘conjugal expectations’ does not extend to extend to ‘sex against the will of the spouse’. In the end, Justice Hari Shankar seeks shelter under a flimsy separation of powers argument that by striking down this exception, the Court will be exercising its writ jurisdiction under Article 226 of the Constitution of India, ‘which would amount to unconscionable encroachment on the legislative sphere.’

As the matter involves substantial questions of law, the judges have granted the leave to appeal to the Supreme Court. Let us hope that the Supreme Court will strike down this 300 year old regressive common law doctrine!