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  • Nandini Jiva

Why is everyone discussing the marital rape case?

The recent marital rape hearing has the country wound up in many diverse opinions. Some argue the need to recognise the law, while some raise questions on the sanctity of the institution of marriage with such a potential amendment, and some have even hopped onto trends like #MaritalStrike. After granting two-week’s time to the government to formulate its stance on marital rape, i.e. till March 2nd, the Delhi High Court has reserved its judgment. This is because the government failed to take a stand on the matter, requesting more time. This comes coupled with the Karnataka HC ruling that marital relations are irrelevant while prosecuting for rape. Justice M Nagaprasanna said, “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’.” The ruling is important while contextualising the marital rape debate at the national level.

Here is what the Delhi HC hearing is about and why the country is so extensively debating and discussing it.

What does the law say about marital rape?

There is no direct mention of the term ‘marital rape’ in any statute. Section 375 of the Indian Penal Code defines the meaning of rape, and includes the definition of marital rape as an exception. It provides that sexual intercourse by a man with his own wife, who is not under fifteen years, is not rape. Apart from this, there is no direct mention of the term marital rape.

How did the case reach this stage?

The first petition on the legality of this exception was brought to the Delhi High Court by RIT Foundation. The Supreme Court then ruled that the exception does not apply if the wife is under the age of eighteen. The current petition is a culmination of various discussions, cases, and reports on exploring the possibility of removing the marital rape exception. The Justice Verma Committee Report, that was created to suggest reforms in offences around sexual assault against women after the Nirbhaya case, also suggested that the marital rape exception should be removed. It said that marriage should not imply irrevocable consent to sexual acts. Consent should be the primary requisite and the relationship between the victim and accused should be immaterial. So, taking into consideration all this, the Court will take its decision.

What are the legal issues arising in the case?

The most important element is that of determining consent. The meaning of consent under a marital relationship must be scrutinised minutely to determine the same. The Bench consisting of Justices Rajiv Shakdher and C Harishankar noted that there is a “right to have sex”, which is distinct from the “reasonable expectation of sex”, and this has to be examined in the context of marital rape. The issue of a woman’s autonomy to have her own decision-making power in a modern democracy was brought up by the petitioners too. They also argued that “implied consent” in a marriage cannot be considered “irrevocable”, meaning that consent can be withdrawn at any point even if it is implied.

Article 14 signifies that though the provision provides for equal treatment of all persons before the law, there is a test of reasonable classification of sections that might require differential treatment. Essentially, the law says that equals be treated equally and unequals be treated unequally, as reasonably required. And this classification must be founded on “intelligible differentia”, meaning that the classification must be reasonable and clear. There should be no vagueness or discrimination in it.

This argument was brought up in the hearing to determine whether an illegal act (rape) considered legal if done within a marriage is intelligible differentia, all arguments considered. The Petitioners argued that there is no rational reasoning behind separating and creating a separate class where a woman can prosecute everybody but her husband for a serious offence. Men’s rights groups and the government have argued that marriage creates a rational difference between the two.

Another contention brought forth was also that considering the number of cases of misuse of sexual assault laws, including laws relating to a marital relationship under the ambit of rape could have severe consequences. This also brings to light another issue of creating a new law or provision on marital rape. The Court’s scope of judicial review will also come into question as their role is not to create legislation but to prevent its misuse. The removal of the marital rape exception will include defining the offence, which is the Parliament’s role.

What is the social impact of this hearing?

It has been said repeatedly that the criminalisation will have far-reaching socio-legal consequences. The arguments rely on questioning why there is classification of the offender in an act of rape. The defence of marriage has found voice in legislative debates as well, where several MPs dismissed the idea that a husband could rape his wife. It is still discussed that this treatment of women in this context finds its roots in the patriarchal nature of the institution of marriage itself. The courts now have a chance to look at the constitutional and social challenges that arise through this case, and examine whether marital rape violates the equal protection of people through its differentiation between married and unmarried women.

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