An appeal has been filed in the Supreme Court against the Delhi High Court’s split verdict on a bunch of pleas seeking to criminalise marital rape. Khushboo Saifi moved the appeal through her counsel days after the high court last week gave the verdict while referring the matter to the Supreme Court for an authoritative decision.
Justice Rajiv Shakdher of the high court had said the exception in rape laws that insulates husbands was violative of the Constitution of India. He said that the exception amounted to giving recognition to the abominable Common Law Doctrine that “a married woman is nothing but chattel who loses her sexual agency once she enters matrimony”. Justice C Hari Shankar differed and said the exception did not violate any law and was not unconstitutional.
Both the judges, despite dissenting views on the criminalisation of marital rape, allowed the parties to appeal to the Supreme Court, saying the issue involved a substantial question of law.
An exception to Section 375 of the Indian Penal Code decriminalises marital rape and mandates that sexual intercourse by a man with his wife aged above 18 is not rape.
Reacting to the split verdict of the high court, activist Jyoti Tiwari had told Sirf News in the course of a talk show that activism of this kind, influenced by Western countries, tends to affect the Hindu Marriage Act alone while leaving the Shari’ah untouched and, thus, applying pressure on the legislature to make such laws may have an anti-Hindu motive.
Tiwari said further that to these self-styled feminists, women’s rights are only about the rights of a young woman. “They are not concerned about the rights of the man’s mother and sisters,” she said.
Section 375 of the Indian Penal Code defines the term rape, which provides that, to constitute the offence of rape the essentials are required which are,
- Sexual intercourse must be left with a woman by a man, as understood in the term of Section 375 (a) to (d).
- Such sexual intercourse must fall under any of the following seven circumstances:
a. Against her will;
b. Without her consent;
c. With consent obtained under fear of death or hurt;
d. Consent is given under the misconception of fact that the man is her husband;
e. Consent is given because of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance;
f. With a woman under 18 years of age, with or without her consent
g. With a woman who is unable to communicate her consent.
But what constitutes rape has some exceptions according to the law.
i. If a woman does not physically resist penetration, it is not regarded as sexual activity.
ii. A medical procedure or intervention shall not amount to an offence of rape.
iii. Sexual intercourse or sexual act by a man with his wife, where the wife is not under 15 years of age is not rape.
The third exception is what is of late being referred to as marital rape. This exception to Section 375 states that non-consensual sexual intercourse by the husband with his wife, if the wife is under the age of 15 years, qualifies as rape. That is, if the wife is over the age of 15 years, it would not be rape. When Exception 2 is read with the seven circumstances, the exception will prevail. It means that if the wife is over 15 years, her consent or will becomes immaterial.
The greatest bone of contention in the demand for a marital rape law are, however, two. One, how can marital rape be proved as marital sex is normally expected to happen with nobody except the husband and the wife present on the spot. So, it is the word of one against that of another. Two, how is it a feminist issue, as women related to the husband get dragged into cases that are governed by laws dealing with marriage too?