Of the two judges hearing the case, Justice Rajiv Shakder ruled that the second exception to Section 376 of the Indian Penal Code, which exempts rape committed by a husband on his wife from the definition of rape [Marital Rape Exception, or MRE], is unconstitutional. The other judge, Justice C Hari Shanker differed and allowed the protection afforded to husbands to remain. With the split verdict, the status quo (continuation of MRE) prevails. This article will, therefore, deal exclusively with the latter judgment of Justice Hari Shanker, and references are to be construed accordingly.
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The judgment starts off saying that “there can be no compromise on sexual autonomy of women, or the right of a woman to sexual and reproductive choice. Nor is a husband entitled, as of right, to have sex, with his wife, against her will or consent” (para 6).
If something is so emphatically objectionable, what is the consequence of committing it? According to the judgment: nothing. The judgment argues that it disagrees that “the only logical consequence of grant of complete sexual autonomy to a woman is the outlawing of the impugned exception.” In plain speak: ‘just because women have the right to refuse sex, doesn’t mean that the only way to punish a violation of such a refusal is through the rape law.’ The problem with that argument is obvious: When there is a law punishing rape, why would you punish rape under some other law?
The judgment responds: Because marital rape is specifically excluded by the legislature from the definition of rape in the IPC. But that is precisely what this case was trying to remedy. Circular reasoning, at best, as the role of the judiciary is to test Parliament’s laws through the prism of unconstitutionality.
The judgment answers this by saying that the Constitution does not specify the right to sexual autonomy as a fundamental right, or even a constitutional right, for that matter. Reasoning very similar to that employed in the leaked draft majority judgment of the US Supreme Court that proposes to overturn Roe vs Wade, which had declared the right to abortion a fundamental right.
Before we pass that reasoning through a sieve, let us examine how the judgment then defends the MRE. In para 119, it says that “In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable”. Therefore, it goes on to argue, the possibility that the husband can be regarded as a wife’s rapist, would be antithetical to the very institution of marriage (para 120).
In para 127, it argues that marriage carries a legitimate expectation of sex by a husband, and, therefore, unjustified denial of sexual access is not sanctified, or even condoned by the law.
Wait! Didn’t the judgment state at the outset that there can be no compromise on sexual autonomy of women? A complete U-turn over the space of just 100 pages?
But the most horrific observation comes in para 135. Comparing the effect of non-consensual sex by a stranger to a marriage and a husband, the judgment asserts that it is “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”.
Is there any basis for such a conclusion? In fact, it would be simply futile for any of us who haven’t been subject to a sexual violation (irrespective of gender) to put ourselves in the shoes of those for whom it is a lived experience, and pontificate on how it ‘must feel’.
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Now on to the unconstitutionality of the exception. Most constitutional lawyers try to argue that a particular statutory provision is violative of Articles 14 (Right to Equality, and also, protection from arbitrariness of laws), 19 (Freedoms including that of speech and expression) and 21 (Right to Life). In this case, the arguments on the line of Article 14 were concededly weak (Justice Shakder’s analysis barely even refers to it). This judgment, nevertheless, goes to town with how the exception is consistent with Article 14 (analysed in over 70 pages), while the other two are brushed aside in passing (together, six pages).
Does marital rape violate the Right to Life? The Supreme Court has held that the Right to Dignity is a Fundamental Right that has been guaranteed in Article 21. The right not to be sexually violated surely squarely must fall within that.
The judgment argues that a court cannot ‘create a new crime’, by making husbands who violate their wives suddenly guilty. This probably is the strongest of the arguments. That is the legislature’s role. However, it is not without precedent. In Independent Thought vs Union of India, the apex court had, in 2017, found that the same section which protected non-consensual sex with a wife of over 15 years of age, would have to be read down to protect only husbands who have non-consensual sex with a wife above 18 years of age. In that case, the petition challenged the exception only as it applied to minors. In a broader petition, the same reasoning though, should apply.
Perhaps the outcome of this judgment is for the better. It was the recriminalisation of Section 377 (which penalised unnatural sex) by the Supreme Court that led to more conversations about the afflictions of the LGBTQIA+, leading to its eventual decriminalisation by a constitution bench in 2019. This judgment, will similarly, lead to more conversations about marital rape, its prevalence, and effects, as it should. The Supreme Court will ultimately decide.
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