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Delhi HC’s Justice Rajiv Shakdher Says False Cases Not A Reason To Not Strike Down Unconstitutional Marital Rape Exception

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The split verdict on marital rape delivered by the two-judge bench of the Delhi High Court yesterday, took social media by storm. While one faction hailed the move as it was a positive step towards recognising marital rape and criminalising it, the other was busy complaining about how criminalising marital rape could lead to more “false cases against men”. The two-judge bench of Delhi High Court comprising Justices Rajiv Shakdher and C Hari Shankar was hearing a batch of petitions seeking the criminalisation of marital rape and striking down the Exception 2 of Section 375 of the IPC. This exception protects men from criminal prosecution for having non-consensual sexual intercourse with their wives. In the verdict, Justice Rajiv Shakdher struck down the exception and called it unconstitutional but Justice C Hari Shankar disagreed with it and upheld the exception. The detailed copy of the judgement was released earlier today.

According to the detailed judgement, Justice Rajiv Shakdher spoke about the court’s responsibility to make decisions related to social issues and not move past them. Speaking about Exception 2 of Section 375 of the IPC, the judge noted that even sex workers have the right to say no according to the law but a married woman does not. He went on to add that in the case of a gang rape involving the husband of the victim, all the co-accused will be prosecuted but the husband will get away with it due to his relationship with the victim. Justice Shakdher also pointed out that when a woman is violated by her husband and subjected to sexual abuse, she is provided with legal remedies but none of these remedies brings the office of rape within its fold. He also called out the State and said that it cannot have a “legitimate interest” in saving a marriage when in fact, the same marriage is “tyranny”.

Image Source: LiveLaw

Also Read: Hautetalk: Marriage Cannot Take Away A Woman’s Right To Say ‘No’. Criminalising Marital Rape Is The Need Of The Hour

According to Outlook, speaking about State’s argument that the exception is in place to protect the familial structure, Justice Shakdher said that this argument gives recognition to the Common Law Doctrine that after marriage, a “woman is nothing but chattel who loses her sexual agency”. Calling the marital rape exception “egregiously problematic”, the judge said that it does not take into consideration the circumstances under which a wife may say ‘no’ to sex including things like menstruation or in cases where the husband has contracted an infectious sexually transmissible diseases. “Her refusal in such a situation may emanate not only on account of concern for herself but also, to protect the progeny which may result from such communion,” he said.

Justice Shakdher of the Delhi High Court further noted that the fact that the rapist is the husband of the victim does not make rape any less injurious, degrading or dehumanising. He went on to add that apart from physical scars, marital rape also leaves “much deeper scars on the psyche of the victim”. He called a woman’s right to withdraw consent at any given point in time, the core of a woman’s right to life and liberty under which she has the right to protect her physical and mental being as prescribed by the Indian Constitution. “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,” said the judge according to a report by Outlook.

Also Read: Karnataka High Court Terms Marital Rape Exception Regressive, Says “Brutal Acts Of Sexual Assault On Wife By The Husband Is Rape”

The judge further added that the marital rape exception denies a woman “the agency and autonomy that the Constitution confers on her”. In the nearly 400-pages long judgement, Justice Rajiv Shakdher said that one cannot turn a blind eye to a crime like rape just because it is difficult to prove. He added that calling sexual assault by a husband on his wife as rape is important as it is a way in which society can express its disapproval regarding the conduct of the offender. Speaking further, the judge said the conjugal expectation in a marriage can be held as long as the expectation is not equated to an unfettered right to have sex without the consent of the wife.

Justice Rajiv Shakdher also addressed the issue of false cases and said that it is a notion which is not backed by data. He also quoted the National Family Health Survey 2015-2016 and shared that as per the data collected, a large number of women do not report sexual assault due to the stigma attached to it. He added that this reveals the “disturbing aspects” regarding spousal sexual violence from both current and former husbands and this is apart from the empirical data that 99% sexual assault cases go unreported. Calling the contention of false cases against husbands incorrect, the judge added that the NHFS data proves that 9.9 out of 10 cases of sexual assault go unreported in India and just the mere possibility of false cases being lodged against the husbands cannot be a reason for the court to not strike down the marital rape exception despite it being unconstitutional. He also added that the courts in India are equipped to deal with false cases.


Also Read: Amid Delhi HC’s Split Verdict On Marital Rape, Twitter Seems To Be More Concerned About “Falses Cases Against Men”

The judge concluded his verdict by holding the marital rape exception violative of Articles 14, 15, 19 and 21 of the Indian Constitution and held that rape committed by the husband on his wife needs to be called rape as non-consensual sex in a marriage is against what matrimony stands for in today’s time, which is a relationship of equals.

Well, we are glad to see that the court is taking into consideration the plight of the married Indian woman who seems to have lost her fundamental rights after entering a marriage. I do understand that marital rape is a grey area but that doesn’t mean that women aren’t victims and don’t suffer at the hands of the abuser. If anything, marital rape is a much more heinous crime as the abuser is someone they trust and share a home with.

Picture Credit: LiveLaw

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