Marital Rape Judgment: Husband requesting wife for sex is exercising his……….. : Justice C Hari Shankar

Marital Rape Judgment: Husband requesting wife for sex is exercising his right, asking wife to discharge obligation: Justice C Hari Shankar

Justice C Hari Shankar who was one of the two judges on the bench ruled against criminalising marital rape and refused to strike down Exception 2 to Section 375 of Indian Penal Code which exempts non-consensual sex by a man with his wife from the ambit of rape.

In his judgment which run into nearly 200 pages, Justice Shankar said that any assumption that a wife forced to have sex with her husband feels the same degree of outrage as a woman raped by a stranger is not only unjustified but even unrealistic.

“Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic,” he stated.

A husband forcing his wife to have sex with him, despite her unwillingness is wrong, the judge said.

However, when a woman decides to marry a man, she consciously and willingly enters into a relation in which sex is an integral part and the woman gives her husband the right to expect meaningful conjugal relations, Justice Shankar opined.

“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,” the judgment said.

Thus, the same cannot be equated with that of rape by a stranger, it was held.

“If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger,” the judgment stated.If the wife refuses and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger.Justice C Hari Shankar

By holding so, the judge disagreed with the view of the senior judge, Justice Rajiv Shakdher who said that conjugal expectations, though, legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife.

Justice Hari Shankar further said that though the petitioners may say that a woman who is surviving in a marriage with her husband, with whom she has had sex one or more times against her will, would want to drag him to court for rape, it cannot even be assumed that this is perception reflects the views of the majority of Indian women.

“Any such contention would, at the very least, be purely presumptive in nature. This aspect is important. As Mr Tushar Mehta, learned Solicitor General correctly submitted, the impugned Exception, and its evisceration from the statute book, are not issues of merely legal import; the issue has wide societal and sociological ramifications, which cannot be ignored. The perception of the teeming millenia of this country cannot, therefore, be regarded as an illegitimate consideration, while examining the need, or otherwise, to retain the impugned Exception in Section 375 of the IPC.”Where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part.Justice C Hari Shankar

The judgment said that marriage, as a sociological instrument, confers legitimacy to sexual activity between man and woman and one of the grassroot justifications for marriage is, unquestionably, the right to engage in sexual activity without social disapprobation.

Introducing into the marital relations the possibility of husband being regarded as wife’s rapist if he has sex with her without consent, would be completely antithetical to the very institution of marriage as understood in the country both in fact and in law, the judge said.

“The daughter born of such an act would, if the petitioner’s submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling. Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute. The sequelae, were the submissions of the petitioners to be accepted, are mind boggling,” the judge further stated.

Justice Hari Shankar further noted that sex between a husband and wife is sacred and it is because of this unique character and complexity of the institution of marriage that the legislature has felt that no allegation of rape has a place.

“In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of ‘rape’, in my view, is completely immune to interference.”

The judge said that the petitioners as well as amici curiae merely seek to propound what, in their view, should be the laws while they failed bring even an iota of material to show that act of sex by a husband with his wife, against her consent is, legally rape.

He added that the counsel completely failed to accord to the marital relationship the status and importance it deserved.

Marriage, the counsel failed to take into account, is not a brick-and-mortar institution but an institution which epitomizes, at the highest level, the most sublime relationship that can exist between man and woman and decidedly, it is not an “imposed conception”, Justice Shankar held.

Justice Shankar, therefore, said that the marital rape exception, far from being unconstitutional, serves a laudatory purpose, and is in pre-eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests.

“Absent a subsisting and surviving marriage, neither would learned counsel have been here to argue the matter with the proficiency they exhibited, nor would we be here to pass judgement thereon,” he said.