The split verdict of the Delhi high court on the question of criminalisation of marital rape points to the reality that India, an aspiring democratic republic with modern values, is facing.
The legal question before the court was whether Exception 2 in Section 375 of the Indian Penal Code, which defines rape, is against the Constitution. Exception 2 says sexual intercourse or sexual acts by a man with his wife are not rape.
One of the two judges on the bench thought it fit to strike it down holding it contravenes some of the fundamental rights guaranteed, under Article 14 (right to equality), Article 19 (freedom of speech and expression) and Article 21 (life with dignity), of the Constitution. He felt that the exception protected men who have forced non-consensual intercourse with their wives from criminal prosecution.
The other judge held that the exception “was based on marriage as an intelligible criteria” and it was not “unconstitutional and was based on an intelligible differentia”.
Those who wanted the exception to be removed contended that it discriminated against one category of rape victims – the wives. They also refused to subscribe to the logic behind holding domestic violence as a crime but not marital rape. That a woman has got married by no extension of logic would strip her of her rights on her own body and that her consent would be of no value, they contend.
Those who backed the exception, which included the Central government, said criminalising marital rape “may destabilise the institution of marriage, apart from being an easy tool for harassing the husbands”. They also cited the instances of misuse of Section 498A IPC, which deals with cruelty by husband or husband’s relatives against a woman to buttress their argument.
It is interesting to note that even the backers of the exception do not claim that marital rape does not happen in this country, nor that it is not an offence. They are worried about the impact the absence of the exception can create in society and the potential misuse of the resultant legal position.
This takes the ball from the judiciary’s court and puts it firmly in the court of the political establishment. The affidavit the Union government submitted before the Supreme Court makes it clear that it knows what is happening is not right but stopping it could have some repercussions. In short, the government was fighting shy of doing what was right, fearing the response of the prevailing social realities.
No country can be ruled by decrees which have no popular support; it’s the job of the executive branch of the government to persuade society to improve itself, own a better sense of justice and create laws which reflect and firm up such a sense. The government has as of now shown no spine to do the job; the court had to make a tough talk to solicit an opinion of the government which sought endless time to make up its mind.
The government must now stop playing the coy patriarch and start the process of scrapping a patently unjust legal provision which is an affront to civilisation instead. None will fault it if it wants a piece of legislation that criminalises marital rape to have a soft landing. But land it must.