The Delhi High Court’s split verdict on the criminalization of marital rape is a ‘tragedy’ but ‘still a step forward’, said several women activists who expressed hope that the Supreme Court would take a broader look at the issue so that married women are not discriminated against when applying existing rape laws.
Saying it was an expected verdict, women’s rights campaigner Brinda Adige said the High Court probably did not want to issue a final verdict as several parliamentarians had long said that having a law that specifically addresses marital rape would break up families. .
A bench of two High Court judges on Wednesday delivered a split verdict on motions challenging the exception to section 375 of the Indian Penal Code, which exempts a man’s forced sex with his wife from the criminal offense of rape.
Judge Rajiv Shakdher ruled that the exemption granted to a husband from the offense of marital rape was unconstitutional and he struck down Exception 2 of Sections 375, 376B of the Indian Penal Code (IPC). He said it violated Section 14 of the Constitution, which guarantees equality before the law. However, Judge C Hari Shankar ruled that IPC Sections 375, 376B Exception 2 did not violate the Constitution.
Feminist and queer rights activist Chayanika Shah expressed surprise at the ruling. She said it was strange that one judge thought it was unconstitutional and the other didn’t. For her, that meant they weren’t testing the issue of rape against the Constitution.
“It’s being tested on the notion of marriage that society holds. In my opinion, the constitutional understanding of marriage should also be in accordance with the fundamental fundamental rights set out in the Constitution and not with the norms of society,” she said.
Marital rape should be in the law, Shah said, saying marrying someone does not mean consent to sex is given permanently, as consent must be negotiated even within marriage.
Several women expected the judges to issue a joint verdict. “We thought both judges would see the same way and it is unfortunate that there is a split verdict. It’s a long struggle. Even now, we are still unable to accept the fact that marriage gives a husband the right to engage in non-consensual sex with his wife,” said Mariam S Dhawale, General Secretary of the All India Democratic Women’s Association, one of the petitioners in the case.
Dhawale said they would investigate the verdict, but stressed they would have to go to a higher court.
Claiming the verdict was a “tragedy”, a member of the women’s group Saheli Vani Subramanian observed that the court had not said marital rape was not taking place. “It just means we can’t acknowledge that it happened. This is the real tragedy,” she said.
Women’s rights lawyer and co-founder of the legal and cultural resource center Majlis, Flavia Agnes has a slightly different view. The split verdict ensures the case will reach the Supreme Court, Agnes said, and that would have a better impact than a High Court verdict.
“Overall, a judge said it was unconstitutional, so the Supreme Court is more likely to uphold that. So in a way, it’s a step forward,” Agnes said.
Agnes also said that the focus of this law meant that only sexual violence was concentrated and that any other type of violence that occurred within a family was excluded.
“I have a general problem except because I think there should be laws to criminalize other forms of violence in marriage. I want to expand the law so that it also looks at the extent of injury The extent of violence in marriage does not only fall in the sexual act, but also occurs in all other spheres of domestic life. It is also a good time to look at this, “added Agnès .
Agnes said IPC Section 498A, which deals with cruelty to a woman for dowry, defines it as anything that is likely to cause a woman to commit suicide. “But the law doesn’t describe the extent of the violence and that means judges can say there is no ‘threat to life’. Who should decide the level of mental or physical torture that can cause a woman to die by suicide? When does it break? Does a woman have to be dead before she can go to court? asked Agnes.
Noting that the domestic violence law is a restorative law, Adige pointed out that when men’s rights activists say women can seek redress under this law, they don’t seem to understand that it’s not than a restorative law. The law does not penalize. He talks about a certain amount to be given by the husband to the wife when there is a case of “serious physical assault”, but to date how many have even obtained this amount from the courts, Adige asked.
“People can talk about sexual abuse, emotional abuse, and verbal abuse in a marriage, but Section 498A talks about cruelty in the marriage over a period of time. The laws do not deal with the matter defined as rape in a marriage by our law. This is what we ask for when we ask for a marital rape law,” noted Adige, who favored expanding the scope of the law.
Under domestic violence law, the complainant must go to court, Adige said, but in most cases people go to the police, where both parties are “advised”.
She pointed out that people point out that when a case of rape is inflicted on a man, there is no chance of reconciliation between husband and wife. Turning that argument around, Adige said that for years society and the courts have asked women who have been raped to marry their rapists. “So how did they decide that they could live happily ever after. In their patriarchal mind, they want to figure out how can you talk about your spouse or partner raping you, because what else is a woman there for? They don’t want to understand it because of the stereotypical structural patriarchal positions they want to adopt.
A verdict like this says that if a female member of the family is beaten or thrown down a flight of stairs, it will be considered domestic violence, but if she is raped, it is not, Subramanian argued.
“It’s basically problematic. Abuse is abuse and the courts have to treat it as such. It’s also abuse if your legally married husband does it to you. There’s so much angst in keeping a family together that “They’re ready to say women have to pay the price. And they keep saying men don’t understand consent,” Subramanian said.
She said men seem to misunderstand the concept of consent only when the question of a woman’s body arises. “They need to understand that even after marriage, a woman’s body belongs to her and she has the right to consent or not to a sexual act. But, suddenly, because a woman has been married, it is considered as consent for life. In criminal law, we have advanced to understand what rape is. But, the other part of the law does not want to move forward,” she said.
Mentioning the crux of the matter, Shah said that since the Constitution gives every citizen of this country the right not to be discriminated against, it should follow that the citizen should not feel violated either. This right must be granted to women and cannot be taken away from them.