When two views on marital rape divided the Delhi High Court

Two judges of the Delhi High Court split right down the middle in their conception of both the marital relationship and of the role judges play in the constitutional framework.

In cases challenging a law’s constitutionality, the courts must grapple with questions of both social and political values, and their own role in the constitutional scheme. This week, in RIT Foundation v Union of India, a rare thing happened: Two judges of the Delhi High Court split right down the middle in their conception of both the marital relationship and of the role judges play in the constitutional framework. Section 376 of the Indian Penal Code (IPC) makes rape a criminal offence but makes an exception for “sexual intercourse or sexual acts by a man with his own wife”. This exception was under challenge.

Do we – as citizens – think that forced, non-consensual sex within a marriage is rape? Is it more humiliating to be forced to have non-consensual sex by your husband than to be raped a stranger? (Shutterstock)

Justice Rajiv Shakdher called the marital rape exception (MRE) “steeped in patriarchy and misogyny” and said a husband’s “conjugal expectation” to have sexual intercourse with his wife does not give him an unfettered right to have sex without his wife’s consent. “Modern day marriage,” Justice Shakdher held, “is a relationship of equals… Consensual sex is at the heart of a healthy and joyful marital relationship.”

While justice C Hari Shankar agreed that “conjugal rights… end where bodily autonomy begins”, he found that non-consensual sex by a husband within marriage does not amount to “rape”. There are other provisions of the IPC, such as Sections 304-B (dowry death), 306 (abetment to suicide) and 498-A (cruelty), that can be invoked where non-consensual sex has occurred, but a married man cannot be called a “rapist”. The judge compared rape by a stranger with marital rape, to conclude that a wife forced to have sex with her husband “on occasion” does not feel the same degree of outrage as a woman raped by a stranger.

These are two opposing views of the sexual bond in marriage. Given that marriage is a social institution that affects most people’s lives, this is a judgment people must read for themselves to contemplate these divergent views. Do we – as rights-bearing citizens – think that forced, non-consensual sex within a marriage is rape? Is it more humiliating to be forced to have non-consensual sex by your husband than to be raped a stranger? Conversely, what is a married couple’s experience of a sexual relationship based on mutual consent? If a wife can expect to be treated as an equal in the bedroom, how might she then assert her equality in other spheres?

The court has also differed on the role that the judiciary plays while examining social and political questions. Under the doctrine of separation of powers, the judiciary, executive and the legislature operate in different spheres. One organ cannot take over the functions of the others. As a corollary, courts are often called upon to exercise “restraint” by deferring to the presumed wisdom of the legislature which is assumed to know what the people want.

Justice Shakdher notes that the court is faced with a legal question: Does the MRE violate the fundamental right to equality, a woman’s right to bodily autonomy, and self-expression? While the judiciary, he says, ought to defer to the legislature in matters of economic policy, the court is obliged to decide questions of fundamental rights violations by States. Shunning this responsibility would amount to abandoning the court’s constitutional duty. Both the Union and the Delhi government refrained from expressing an opinion before the court. Thus, Justice Shakdher notes, “Practically, the State made no case for or against the continuance of the impugned provisions on the statute.”

By contrast, having found the MRE does not violate the equality clause (because non-consensual sex with a stranger and a husband are fundamentally different), Justice Hari Shankar holds the court cannot strike down a law merely because it feels that the act should be an offence. It is for the legislature to make marital rape an offence, and the most the court can do is to recommend this change to the legislature.

To have a society free of sexual violence, our most intimate relationships must be based on equality. Every incursion into the family is marked by doubt and hesitation as to the effect that it will have on society. Yet, where the legislature and executive hesitate to act or even express an opinion, the court must exercise its role in the constitutional scheme as the guardian of fundamental rights. The Delhi High Court has granted parties leave to appeal before the Supreme Court (SC). In 2018, the Gujarat high court had held marital rape should be criminalised. It is now for the SC to decide between these differing views.

Arundhati Katju is a Delhi-based lawyer 

The views expressed are personal