The Delhi High Court's decision on marital rape was highly anticipated because it was perhaps the first time a high court was deciding on the constitutionality of the exemption granted to a husband against rape charges from his wife.
Supreme Court and various high courts have opined on marital rape in individual cases, that's why even the Delhi High Court's split verdict on marital rape cannot be seen as a stalemate for it takes the debate one step ahead in light of the reasoned observations made by the two judges.
"The issue at hand raises concerns of enormous public importance, which has, both, legal and social connotations," Justice Rajiv Shakder observed in his opinion adding that this was demonstrable from the fact that it has already received the attention of different High Courts. Justice Shakder particularly relied on observations from the high courts of Gujarat and Karnataka to make his points.
In December 2021, Justice JB Pardiwala when he was a judge at the Gujarat High Court—he was elevated to the Supreme Court earlier this week on May 9—issued notice on a similar plea observing that it was "high time" that one undertook the "exercise of considering, whether the exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman's fundamental right to sexual autonomy subject to the whims of her husband."
In a 2018 judgement Justice JB Pardiwala had observed that marital rape was a "widespread problem" and that it ought to be a crime.
Earlier this year March, Karnataka High Court observed that the institution of marriage can no longer provide protection to a husband while upholding the rape charges brought on by his wife.
Globally, 150 countries have criminalized marital rape; India continues to remain one of the few exceptions. The Supreme Court has now been tasked to decide whether India will join the majority on marital rape.
Also Read: Explained: The Debate Surrounding the Laws On Marital Rape In India
BOOM extracts important opinions put forth by the two judges.
Justice Rajiv Shakder said that the right to withdraw consent at any time forms the core of women's rights and liberty, while Justice C Hari Shanker opined that "a legitimate expectation of sex" is an inexorable aspect of marriage.
Justice Shankar further stressed that if the marital rape exemption were struck down it would create a new offence, to which, Justice Shakder said that such a submission was "misconceived".
The differing opinions of the Delhi High Court's division bench led to a split verdict in pleas seeking to criminalise marital rape and more importantly, resulted in a stalemate in the debate between men and women's rights.
Justice Shakder held that the Exception 2 to Section 375 IPC, which exempts a husband from the offence of rape if he has forced sex with his wife, as unconstitutional, while Justice Shankar said by removing the Exception 2, one was creating a "new offence".
The high court has allowed the parties to appeal against this verdict before the Supreme Court.
Also Read: Marital Rape: Delhi High Court Delivers Split Verdict
Married women should have right to bring offending husband to justice: Justice Rajiv Shakder
"Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances."
"Non-consensual sex destroys the very core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred."
"…a married woman's right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long. Deifying women has no meaning if they are not empowered."
"They (wives) are our equal half; some would delightfully say our better half. It is time that all stakeholders bite the bullet. It would be tragic if a married woman's call for justice is not heard even after 162 years, since the enactment of IPC."
"To my mind, self-assured and good men have nothing to fear if this change is sustained."
"Certain sexual offences need to be called out for what they are. Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape...".
"The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing."
Also Read: Karnataka HC Upholds Rape Charges Against Husband
Expectation of sex a legitimate expectation in a marriage: Justice C Hari Shankar
"The (marital rape) Exception, far from being unconstitutional, serves a laudatory purpose, and is in pre-eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests."
"An act of non-consensual sex, as committed by a complete stranger, cannot, therefore, be equated with an act of non-consensual sex by a husband. The extent of outrage felt by the wife, in the two cases, is also distinct and different."
"The expectation of sex of the husband, with his wife is, a legitimate expectation, a healthy sexual relationship being integral to the marital bond. Unjustified denial of sexual access, by either spouse to the other, is not, sanctified or even condoned by law…"
"Introducing, into the marital relationship, the possibility of the husband being regarded as the wife's rapist, if he has, on one or more occasions, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage."
"Marriage, as a sociological instrument, confers legitimacy to sexual activity between man and woman. A child "born of wedlock", therefore, is "legitimate"; one born out of wedlock is not. One of the grassroots justifications for marriage is, unquestionably, the right to engage in sexual activity without societal disapprobation."
"The expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, a healthy sexual relationship being integral to the marital bond. Unjustified denial of sexual access, by either spouse to the other, is not, therefore, sanctified or even condoned by law."
Also Read: Explained: Why A Law Against Marital Rape Is An Idea Whose Time Has Come