The split verdict in the marital rape case delivered by a two-judge bench of the Delhi High Court on Wednesday reflects a fundamental disagreement on the nature of marriage and the rights and obligations that flow from it.

The court was deciding on the constitutional validity of the exception that does not treat forcible sex by a husband on his wife as rape. Justice Rajiv Shakdher held that a woman in a marriage has the right to withdraw her consent at any point and the immunity presently provided to the husband for marital rape was discriminatory and infringed on her bodily autonomy and expression. This made it unconstitutional.

But Justice C Hari Shankar held that sexual acts between a husband and wife, “whether consensual or non-consensual”, should be treated differently from non-consensual sexual acts between men and women who are not married to each other. Marriage entailed a “legitimate expectation of sex”, he said. Therefore, an exception for marital rape would be legal.

With these disagreements, the case may now be heard by a third judge of the Delhi High Court or directly decided by the Supreme Court.

File photo of the Delhi High Court. Credit: Raveendran/AFP

What was under contention?

The judges were hearing four petitions challenging the exception carved out from Section 375 of the Indian Penal Code 1860, which defines rape as sexual acts by a man on a woman against her free will or consent. This exception relates to “sexual acts by a man with his own wife” when the wife is above 18 years.

The petitioners said that the provision contravened the fundamental rights of married women. They also wanted to strike down Sections 376B of the Indian Penal Code and 198B of the Code of Criminal Procedure 1973, which relate to forced sexual intercourse by a separated husband with his wife.

The Delhi Government and several men’s rights groups opposed these petitions, contending that the relationship between a husband and wife entailed the expectation of sex. Thus, forced sex should not qualify as rape as it would lead to the breakdown of the institution of marriage.

Further, they said that other legal remedies were available for forced sex, such as assault and domestic violence. Forced sex is also a reason for which divorce could be sought, they argued. Lastly, criminalising marital rape would lead to the creation of a new offence, something that only the legislature had the power to do, they said.

Why did Shakdher hold the marital rape exception to be unconstitutional?

Shakdher held that “willingness” and “consent” were the basis for differentiating lawful and unlawful sexual acts under the Indian Penal Code. To treat married women and unmarried women differently, it has to be seen if there was an “intelligible differentia” between the two groups and whether such differential treatment has a “rational nexus” with the objects the law wants to achieve.

While agreeing that that was an “intelligible differentia” between married and unmarried couples, Shakdher held that this differentiation was not relevant to protecting women from forced sexual intercourse, which is what rape laws seek to achieve. This classification was “unreasonable and manifestly arbitrary”, he said. It infringed Article 14 of the Constitution, which guarantees all people equality before the law.

The exception to the rape law is discriminatory against married women and so violates Article 15 of the Constitution, which prohibits discrimination between citizens.

“The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing,” Shakdher wrote.

Further, he said that conjugal expectations cannot be put at par “with unbridled access” to the wife by a husband. According to him, saying that marital rape should not be recognised as it could lead to erosion of marriage amounts to accepting the idea that “a married woman is nothing but chattel who loses her sexual agency once she enters matrimony”.

The marital rape exception also goes against the bodily autonomy and dignity of married women and thus went against Article 21 of the Constitution, which guarantees protection to life and personal liberty.

Shakdher wrote:

“Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances... The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being.”

Shakdher said that there were many instances where a wife may want to withdraw from sexual relations with her husband. Not allowing her to do that violated the freedom of expression guaranteed under Article 19(1)(a) of the Constitution.

“MRE [marital rape exception] makes no allowance for the circumstances in which a wife may say ‘no’ to sex,” he said.

Lastly, according to Shakdher, criminalising marital rape does not lead to the creation of a new offence as the offence of rape remains the same. All that would change is now an “offending husband would fall within the ambit of the offence”.

How did Shankar disagree with Shakdher?

Hari Shankar’s view was starkly opposite to that of Shakdher’s. In his view, the relationship of a wife and husband is distinct “from all other relationships of woman and man” and carries with it a “legitimate expectation of sex”.

“If, therefore, the man, in such a situation, requests her, on a particular occasion, to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage,” Shankar wrote.

Thus, forced acts of sex should not qualify as rape.

There is an “intelligible differentia” between married and unmarried couples that has a “rational nexus” with the objective of protecting the institution of marriage, he said.

There existed a clear difference in forcible sex between a wife and a husband and between strangers. Thus, differential treatment is justified and is not affected by Articles 14 and 15 of the Constitution.

“It would be artificial to assume that the degree of outrage felt by a wife who is compelled to have sex on a particular occasion with her husband, despite her unwillingness, is the same as the degree of outrage felt by a woman who is ravaged by a stranger against her will,” he said.

If marital rape is criminalised, it would be “completely antithetical to the very institution of marriage”, Shankar wrote. To bolster his point, he said that a daughter born out of such an act would be a child of a rapist “because her mother had, on the occasion when she had sex with her father, been unwilling”. This, Shankar said, would be “mind-boggling”.

In fact, Shankar believed that the marital rape exception “far from being unconstitutional, serves a laudatory purpose” of preserving the institution of marriage “on which the entire bedrock of society rests”.

Further, Shankar held that criminalising marital rape would amount to creating a new offence, for which the legislature and not the judiciary is the right forum.

“We would, therefore, be designating the act of the husband, vis-à-vis his wife, as rape, where, earlier, it was not,” he said.

However, Shankar maintained that the exception to marital rape does not “affect the woman’s right to refuse participation in sexual activity” since forcible sex within marriage would be punishable under law. It would just not amount to “rape” as defined under the Indian Penal Code.

Representative picture of a protest held against rape crimes in India. Credit: Reuters

What could happen next in the case?

The petitioners have said that they will approach the Supreme Court to challenge the verdict. The Supreme Court is already hearing a matter from the Karnataka High Court, where a husband is being tried for raping his wife.

Some other High Courts are also hearing the constitutionality of the marital rape exception. In December 2021, the Gujarat High Court issued notice to the Centre and state of Gujarat in a petition challenging the legality of the marital rape exception.

Thus, there is a chance that the Supreme Court may hear the matter before a third judge of the Delhi High Court breaks the deadlock in the Delhi High Court verdict.