In a blow to feminism and its woke flagbearers, a judge of a Delhi High Court bench said on 10 January that the protection given to husbands from being booked for rape under the IPC might have to do with the “qualitative difference” between marital and non-marital relationships. In his preliminary remarks, Justice C Hari Shankar, as part of a division bench, tested claims and submissions made by a batch of petitions that sought to criminalise sex without consent in marriage as “marital rape”.
The judge said while there could be no compromise with women’s right to sexual autonomy and any act of rape has to be punished, the “qualitative difference” is that in a marriage, unlike a live-in or a relationship, a spouse had an expectation and “to an extent a legal right” to establish conjugal (sexual) relations with the partner.
“That qualitative difference has a part to play in why that exception is there… we must appreciate the reason why it remains on the statute books despite the (Justice) Verma Commission and Law Commission. For 150 years, the legislature has kept it,” Justice Shankar said, underlining that petitioners have to show pressing reasons why the high court should strike down a provision.
Qualifying the statement that these were not his firmed up views but a preliminary line of inquiry, Justice Shankar said a reason for the parliament maintaining the exception might be the manner in which rape as an offence is defined in Section 375. “It is a wide definition, it says even a single instance of unwilling sex with (an) unwilling party is rape,” the judge said.
“Let’s take a newly married couple. On a particular day, (the) wife says ‘no’… If for (the) third day it happens, the husband says ‘am walking out’ but wife gives in. Do we categorise it as rape? He is exercising what he believes to be his conjugal right. It is rape if we knock off the exception,” the court said.
“There is no compromise with a woman’s right to sexual and bodily integrity. A husband has no business to compel. (But) the court can’t ignore what happens if we strike down the exception. The husband goes to jail for 10 years if he does this even on one occasion… We need a much more incisive insight into the issue,” the judge said.
Justice Shankar expressed his reservations with the use of the term “marital rape”, saying that calling it rape to define any form of an unwilling sexual relationship between a husband and a wife is “a kind of pre-decision”.
“There is no (concept of) marital rape in India… If it is rape — marital, non-marital or any kind, it has to be punished. Repeated use of the word, according to me, obfuscates the actual issue,” he said.
The bench headed by Justice Rajiv Shakdher — who stated he would “reserve” his “comment” and clarified the court was just having an open discussion — was hearing PILs filed by NGOs RIT Foundation and All India Democratic Women’s Association.