Delhi HC delivers a split verdict on the criminalisation of marital rape

Two judge Bench Delhi High Court has passed a split verdict in the infamous Marital rape case and the onus is now on Supreme Court
The Court proceeding drew huge attention from the media and men’s rights groups were subject to vilification campaigns
Either the status quo should prevail in Supreme Court’s verdict or it should be made gender-neutral

Of all the social bonds ever created by humans, marriage has turned out to be the most civilisational stabilising advent. That is why it was not a surprise when the two-judge Bench of Delhi High Court (HC) could not come to a unanimous conclusion in the marital rape verdict.

High Court delivers split verdict

Now, the onus is on the Supreme Court to decide whether the law of the land will call the husband a criminal based on the sole testimony of his wife. As of now, Delhi High Court has refused to take sides and status quo prevails, that is if the wife fails to prove that her husband did not force her for sex, then her husband will not be called a rapist.

On Wednesday, 11 May 2022, Delhi HC passed a split verdict in the infamous Marital rape Case. Justice Shakdher held that the exception to a husband in rape laws is unconstitutional. “The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 and are therefore struck down”, opined Justice Shakdher.

His colleague Justice C Hari Shankar did not agree with Shakder’s opinion. He said that striking down the exception will end up creating a new category of offence, which was not there in the first place. “As, by allowing the petitioners’ pleas, we would be creating an offence, I am of the opinion that, irrespective of and in addition to all other contentions advanced by the petitioner, and all other considerations that arise in this case, it is impossible for this Court to grant the reliefs sought by the petitioners, as it would result in creation of an offence, which is completely proscribed in law.” said Justice C Hari Shankar

However, both judges were gracious in granting the parties the opportunity to approach the Supreme Court.

Petitioners argued that the exception did not grant bodily autonomy to women

Four petitions were filed to create the new offence of marital rape. RIT foundation in 2015, the All India Democratic Women’s Association (AIDWA) in 2017, Khushboo Saifi, a marital rape survivor, in 2017, and one by a man accused of rape by his wife filed separate pleas. The main arguments of petitioners revolved around women’s bodily autonomy. Advocate Karuna Nundy argued that the exception violates a woman’s right to dignity, personal and sexual autonomy and her right to self-expression, all of which are provided to her by the Indian Constitution under Article 21.

It was also argued that the exception differentiates women on the basis of their marital status. They argued that whether the woman is married, is living under a live-in set-up, divorced, unmarried or separated, every one of them should have equal rights over her body and the law should be designed in such a way that it would protect their rights.

Men’s rights groups argued that it was in line with Constitution

In response, Advocate RK Kapoor had urged that forcible intercourse between husband and wife is sexual abuse and not rape. He cited the definition of cruelty as defined under the Domestic Violence Act 2005 to prove his point. He also argued that a wife cannot compel the parliament to criminalise her husband in order to satisfy her ego.

Senior Advocate J Sai Deepak had also intervened from Men Welfare Trust. He argued that exception 2 of Section 375, Section 376B of IPC and Section 198B of CrPC are the basis upon which the institution of marriage is existent. He submitted that exceptions in these clauses are not arbitrary and cannot be invalidated on the ground of Article 14.

Controversial amicus curiae and governments;’ opinion

Looking at the gravity of the case, the Court had also appointed advisors. Senior Advocates Rajshekhar Rao and Rebecca John were appointed as amicus curiae in the case. They both had argued in favour of removing the exception. The appointment of Rebecca was controversial as she was not believed to be impartial in her opinion.

Court had also asked the Centre and Delhi Governments for their opinion. The Union government had argued that it needed a comprehensive approach involving all state governments. It clearly stated that relying on the arguments of a few lawyers may not serve justice. On the other hand, Advocate Nandita Rao, representing the Kejriwal government had argued that in case the husband compels his wife to have intercourse with him, the wife has already multitudes of remedies available including divorce.

Gender-neutral law is a need of the hour

The case drew a vast swath of media attention and men’s rights groups were vilified by media and left-wing social media pandits. While the case was going on issues such as making it gender-neutral also came to the fore. Later, it went into oblivion. Also, the procedural guidelines according to which mere words of the wife would have made the husband a criminal also became a bone of contention.

If the Court assumes that a Marriage is a bond in which wife and husband are equal partners, then the liability of fallout should be on both shoulders, rather than one. Everyone agrees that forced sex in marriage is a social evil, but rarely will you find people acknowledging that even wives also do it through emotional coercion.

The onus is now on the Supreme Court. In its attempt to correct the wrongs of society, the SC should refrain from overcorrecting and provide equal rights as well as equal remedies to both genders. Either the status quo should prevail or the offence should be made gender-neutral.