women and abuse / All Things Legal

The High Court is split on marital rape. Is consent a utopia now?

. 3 min read . Written by Muskan Miglani
The High Court is split on marital rape. Is consent a utopia now?

A woman’s life takes a complete turn once she gets married; so much so that she becomes immune to rape. In sharing her life with her partner, one of the many compromises she must make is with individual consent.

The Delhi High Court delivered a split verdict on Wednesday on a plea filed to criminalise marital rape. The two-judge bench signed off the case to be referred to the Supreme Court since no middle ground was to be found. While Justice Rajiv Shakhder held Exception 2 to article 375 of the Indian Penal Code unconstitutional, Justice C. Hari Shankar had something else to say on the matter.

Article 375 of the IPC lays down the guidelines defining rape, with two exceptions: one for medical procedures, and the second one for married couples.

According to the constitution, if a married couple engages in sex without consent, it is not unethical or criminal.

The plea to strike down this exception was filed in the court earlier this year by RIT Foundation, All India Democratic Women’s Association, as well as two individuals (one of whom is a marital rape survivor).

“The impugned provisions in so far as they concern a husband having intercourse with his wife without consent are violative of Article 14 (Right to Equality) and are struck down,” held Justice Shakdher.

In announcing his verdict, Justice Shakdher makes some sound points. Not only does he question why consent eludes married couples, but also calls the exception “steeped in patriarchy and misogyny”.

Justice Hari Shankar, who rowed the boat in an opposite direction, said that “what distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex”. In saying so he not only glorifies the position of men, he also lends them special immunity. In his attempt at advancing the cause for married men, Justice Shankar’s opinion has received major flak by women, youngsters, women’s activists, as well as a juicy majority of social media users.

His verdict almost sounds like that when a woman agrees to get married, she is giving an eternal consent to her partner.

Having said so, Justice Shankar remarks that no woman should compare her husband touching her to being “ravished by a complete stranger”.

In saying that a married woman can’t deny sex to her husband, we fail to recognise the woman as an individual with real agency. She becomes an object of gratification to her husband who doesn’t want to take no for an answer. The problem with denying married women the choice to give or refuse consent to their partner essentially degrades their position; it applies both inside and outside the bedroom.

While Justice Shakhder, the head judge warrants the petitioners leave to apply to the Supreme Court, Justice Shankar says that court’s opinion on the matter would not suffice in changing a law provision. The same can be done only by the legislature, after taking into account social and cultural considerations.

After all, the concept of marital rape cannot be applicable in the Indian context.

Apparently, we aren’t ‘modern’ enough for a move like that.

This is not the first time the integrity of Exception 2 has come into question; the quest to make marital rape a real offence has been a long one. Any form of sexual activity without consent is a question on a woman’s liberty, security, and identity.

Justice Shakdher, who identifies that the absence of consent forms the core ingredient of rape, says that the application shouldn’t be any different to a married woman.

Even in a country where marriage is considered a union of equals, the wife is often called the better half to the man, we fail to recognise that equality should transcend wedding vows and contracts. It is about equal protection, equal agency, and equal consent.

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