Marriage Not License To Ignore Consent: Court Told Over Marital Rape

New Delhi: Marital rape will remain condoned until it becomes an explicit offence and such declaration would recognise that marriage is not a universal license to ignore consent, two NGOs argued before the Delhi High Court on Monday.

Counsel appearing for petitioner NGOs RIT Foundation and All India Democratic Women's Association submitted that specific labelling of the offence would not only deter it but also promote the boundaries of the "conjugal right to sex" concerning the bodily integrity of wives.

A bench headed by Justice Rajiv Shakdher was hearing a batch of petitions to strike down the exemption from prosecution for the offence of rape granted to husbands under the Indian Penal Code.

Lawyer Karuna Nundy, appearing for the petitioner NGOs, said that the court's declaration criminalising marital rape would go a long way in realising the constitutional goal of equal respect and dignity to all.

"Not only do consequences to a specifically labelled offence deter it, they elevate the consciousness of those who understand where the boundaries are," she said.

Relying on a Supreme Court's decision, Ms Nundy contended that women cannot be treated as a commodity and marriage did not make a rapist a non-rapist.

"The declaration of a right by a court has a powerful force. Until marital rape becomes an explicit offence it will remain condoned. This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse.

It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal license to ignore consent,"  the lawyer said as she argued that the exception created a "fiction" of consent on part of the wife which gives immunity to the husband.

Justice C Hari Shankar, who forms part of the division bench, however, said that he was "at odds" with the idea that the exception was based on the "fiction of consent".

"Rather, according to me, prima facie it is based on the differentia being created when the parties are married vis-a-vis a state when the parties are not married and it may not necessarily be based on a fiction of consent," the judge stated.

"I have a feeling that we are overemphasizing the consent angle...All they (legislature) have done is that they have said that there is a qualitative distinction between this act when done in the background of when parties are strangers to each other vis a vis the situation where the parties are married," he explained.

The judge also asked the petitioner counsel to deal with the aspect of the creation of a new offence if the marital rape exception is struck down.

Ms Nundy said that striking down the exception would not create a new offence as the offence of rape is already present in the law. She also stated that the Indian Constitution was "transformative" in nature and the case is about "people versus patriarchy and bigotry".

In the written submissions, the petitioners have said that the marital rape exception violates Articles 14, 15, 19(1) (a), and 21 as it takes away a married woman's ability to say a joyful 'Yes' to sexual intercourse.

It added that the ground that criminalising marital rape would destroy the institution of marriage is unacceptable as marriage is not institutional but personal and nothing can destroy the 'institution' of marriage except a statute that makes it illegal and punishable.

Justice Shakdher asked central government counsel Monika Arora to "come back with an answer" concerning the Centre's stand on the petitions.

"The other side doesn't know whether to address the stand that you've taken in your counter affidavit or not," the judge said after the central government lawyer said that she did not have an answer as yet.

Last week, the court had asked the Centre to inform whether it wished to withdraw its earlier affidavit filed in the matter in view of its latest stand that it was undertaking a "consultative process on the issue".

In its 2017 affidavit, the Centre had submitted that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.

However, earlier this month, Solicitor General Tushar Mehta told the high court that the Centre was considering a "constructive approach" to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.

 He had said criminalisation of marital rape involved "family issues" as well as the dignity of a woman and cannot be looked at from a "microscopic angle" and sought some time to respond with the government's stand.

Senior advocates Rebecca John and Rajshekhar Rao, who were earlier appointed as amicus curiae, have contended that the marital rape exception is unconstitutional and ought to be struck down.