Why Marital Rape Qualifies as Rape

In the second week of May, the Delhi High Court passed a split verdict on the issue of whether the marital rape exception engrafted in Section 375 of the Indian Penal Code (IPC) was constitutional or not.

- VRINDA BHANDARI

Exception 2 to Section 375 reads as follows, “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.”

Justice Rajiv Shakdher struck down the marital rape exception (MRE) as being violative of Articles 14, 15(1), 19(1)(a) and 21 of the Constitution, while Justice Hari Shanker held that the MRE was constitutionally valid. Given the split decision and the importance of the issue, the judges unanimously granted a certificate of leave to appeal to the Supreme Court. Appeals have already begun to be filed by the parties before the apex court. It is expected that instead of the matter being referred to a three-judge bench in the Delhi High Court, it will be decided straightaway in the Supreme Court. Till then, however, the MRE will continue on the statute books in India.

The split verdict reveals two completely different worldviews held by the two judges. As Justice Shakdher notes, the colonial history of MRE discloses that it is “steeped in patriarchy and misogyny”, and has contributed to the diminishing of freedoms won by human beings. His judgment centres the autonomy, dignity and privacy of a woman, with the institution of marriage receding in the background. Thus, he observes that marital rape “needs to be called out as rape” as a way for society to express its “disapproval” concerning the husband’s conduct.