Can the Court hold as unconstitutional the exception in law that grants protection to husbands from being prosecuted for nonconsensual sexual intercourse with their wives, has become debatable question of Law in Matrimonial family.
The provisions in the penal law that compromise on woman’s right to freedom of sexual choice, either regarding the person with her husband or when to have sex, or that prohibit a husband from prosecuting an offender for having committed a statutory offence, or that violate any of the fundamental rights would necessarily be unconstitutional.
The impugned exception, however, does none of these things, though women seek to have the provision done away with, would emphatically urge to the contrary.
The issue of criminalisation of marital rape witnessed a split verdict from a division bench of the Delhi High Court with Justice Rajiv Shakdher favouring striking down the exception in law which grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives, while Justice Shankar refused to hold it as unconstitutional.
However, both the judges on the bench concurred with each other for granting the certificate of leave to appeal to the Supreme Court in the matter as it involves substantial questions of law that requires a decision from the top court.
The institution of Society begins from the respective family life. Sexual autonomy of women is non-compromisable and females are equal to men in every way that matters. But the Courts can not hold as unconstitutional the exception in law which grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives.
While Justice Shakdher timely favoured striking down the marital rape exception and said it would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of the Indian Penal Code (IPC). It is an exception under the rape law that is based on an intelligible differentia having a rational nexus with the object of the exception as well as section 375 (offence of rape) of the Indian Penal Code (IPC) itself.
The petitioners had challenged the constitutionality of the marital rape exception under section 375 of the IPC on the ground that it discriminated against married women who are sexually assaulted by their husbands.
The exceptions fo the married women can not be there with her husband, because there are mutual sacrifices in normal times between man and his wife in all aspects. It is the commitment of husband to wife to share his emotional feelings attached to his wife. In normal times, frustrated wives do not come close to husbands to achieve their flimsy demands. But they should also bound to love their jusbandswhich the promise they make to each other at time of their wedding.
Under the exception given in section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. Just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with his married wife or a woman is not rape.
The foundation of the arguments for and behavlf of the married women case is, therefore, with all due respect to women folks, fundamentally the refusal for sexual behaviour is flimsy as the castle cannot be built on reeds. The submissions proceeded on the premise of rape, that any and every act of sex by a man with a woman against her will is necessarily rape, irrespective of the circumstances in which they were situated and the relationship between them, the main issue of whether the exception is unconstitutional, was lost in the clamour and became debatale for healthy family life.
The question of whether the unique demographics of marriage, which unquestionably extend to the sexual sphere as well, would, or would not, justify a differential treatment being extended to sexual acts within marriage, even if non-consensual, was not, I am constrained to debate with the seriousness the subject forceful sexual intercourse deserves. Women are morally, legally, spiritually, and in every other way that matters, equal to men.
Sexual autonomy of women is non-compromisable, the chance chromosomal circumstance that makes one, a man and the other woman has, with the passage of time, ceased to have any significance worth the name. This jurisprudence has only to decide whether, in excepting from the sphere of marriage any allegation of rape, the legislature has acted unconstitutionally.
To urge that rape, per definition, is non-consensual sex by a man with a woman, is just as simplistic as the contention that murder, per definition, is the taking of the life of one man by another. The challenge to the provisions by the alleged victim of marital rape cannot sustain. The judiciary is not able to persuade to the point of view and, perhaps, hears a beat of a different drummer. and wife can not appreciate that.
The court’s verdict came on PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. In its 2017 affidavit, the Centre had opposed the pleas, saying 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 or compelling husband to visit another woman.
As usual, the Centre told the court in January that it was “re-looking” at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago. In February, the Centre urged the court to grant more time to enable it to state its stand on the issue after a consultative process, but the prayer was turned down. The Centre is headed mostly with incombabatent IAS or IPS officers heading respective department, who failed to take timely and healthy decisions under RSS guided fractured and imbalanced public concerning decision making process.
Sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.