The assumption that a wife who has been forced to have sex with her husband feels the same outrage as a woman who has been raped by a stranger is not only unjustified but even unrealistic, Delhi High Court Judge C Hari Shankar said on Wednesday as he refused to strike down the marital rape exception in a split verdict.

“Disagreements, in married life, are but natural and, on occasion, may even lend strength to the marital bond,” Justice Shankar said in the order. “These disagreements could also extend to the bedroom.”

Justice Shankar, along with Justice Rajiv Shakdher, were part of the bench that heard a batch of petitions seeking to remove Exception 2 from the rape law under Section 375 of the Indian Penal Code. The exception states that forcible sexual intercourse by a man with his wife is not rape unless she is below 15 years of age.

In Wednesday’s verdict, while Justice Shakdher held that the exception is “unconstitutional” and sexual assault by the husband needs to be called out as rape, Justice Shankar said that he does not agree with the senior judge’s decision to strike down the immunity to husbands.

Justice Shankar said that among the primary distinction in the relationship between a wife and her husband, from all other relationships, was the “legitimate expectation of sex”.

“In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of ‘rape’ has place,” he opined. “Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred.”

He said that in any marriage, conjugal expectations were a “two-way street”, where “consent is given as a part of spousal intimacy” even if the will to engage is absent.

The judge added:

“If every such incidence is treated in a cut and dried manner as an incidence of marital rape then the only way partners in a marriage may survive would be by drawing up a detailed written agreement and the steps to be observed for courtship or mating or, by creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness- none of which is healthy for the survival of the institution of marriage. This would be a blinkered approach to consent without having regard for the context.”

— Justice Shankar

Justice Shankar also opined that bruises or injuries on a partner need not always mean they were subjected to cruelty or non-consensual sex.

“Given the age of sexual liberation that we live in, it is not possible to conclude whether the wife was exposed to sexual cruelty or non-consensual sex,” he wrote in the judgement. “...As they could be merely a manifestation of passion that may subsist between spouses when they indulge in sexual acts.”

In the 200-page verdict, Justice Shankar, however, agreed with the counsel for the petitioners that there can be no compromise on the sexual autonomy of women or the right of a woman to sexual and reproductive choice.

He also noted:

“Nor is a husband entitled, as of right, to have sex with his wife, against her will or consent. Conjugal rights, as counsel for the petitioners correctly assert, end where bodily autonomy begins. No court can, in this day and age, lend its imprimatur to any theory of a husband, by reason of marriage, being entitled, as a matter of right, to engage in sexual relations with his wife, at his will and pleasure. Sexual activities between man and woman, within or outside marriage, require, in legalspeak, consensus ad idem [mutual agreement].”

— Justice Shankar

Read the full judgement here.

‘A sex worker can say no legally, not married woman’

On the other hand, Justice Shakdher ruled that exception in the law protects men, who have forced non-consensual sex on their partner, from criminal prosecution under Section 376 (rape) of the Indian Penal Code.

“[A] sex- worker has been invested with the power to say ‘no’ by the law, but not a married woman,” Justice Shakdher said. “In a gangrape involving the husband of the victim, the co-accused will face the brunt of the rape law, but not the offending husband only because of his relationship with the victim.”

He added that Exception 2 of Section 375 leaves no room for the circumstances in which a wife may object to having sex with her husband.

“For example, a wife may refuse to engage in sexual activity with her husband when she is ill or is menstruating, or is unable to engage in sexual activity because of a sick child,” the senior judge wrote. “The wife may also want to keep away from sexual activity in a situation where the husband has contracted an infectious, sexually transmissible disease, such as HIV.”

He added: “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. Non-consensual sex destroys this core by violating what is dear to her, which is her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate.”

The case will now go to the Supreme Court.

Explainer: Why is marital rape not a crime in India – and can the courts make it one?