The High Court of Delhi is hearing a petition to challenge the constitutional validity of Marital Rape Immunity that is being provided in the Indian Penal Code (IPC). The case has brought out some of the crucial issues under the spotlight including consent, the extent of the state’s control on women’s sexual autonomy, and the correcting of historical prejudices that are evidently present in the law.
The case is about a two-judge Bench comprising of Justice Rajiv Shakder and C Hari Shankar hearing four petitions challenging the constitutionality of the Marital Rape Immunity that is an exception to Section 375 of the IPC which deals with Rape. The petitioners include the All India Democratic Women’s Association. The High Court will also be hearing the senior advocates, Raajshekhar Rao and Rebecca John amicus curiae.
Section 375 of the IPC has defined Rape and lists 7 notions of consent that if violated will constitute the offense of rape by a man. It is mentioned in the section that sexual Intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age will not be considered rape.
This crucial exemption basically allows a marital right to the husband who can legally exercise his right to consensual and non-consensual sex with his wife. This exemption is now being challenged in the high court as unconstitutional because it undermines the consent of a female based on her marital status.
The controversial immunity is found in many post-colonial common law nations based on two assumptions including the Consent in Perpetuity which states that a woman on marriage gives her consent held by her husband in perpetuity which she cannot take back. This idea is rooted in the colonial-era law that stated that a woman is the property of her man. The second assumption is the Expectation of Sex which means that a woman is duty-bound to fulfill all of the sexual responsibilities in a marriage as the aim of marriage is procreation. The woman is not allowed to deny the husband’s expectation of sex.
Marital rape has been criminalized in the UK, Canada, South Africa, and Australia. The arguments that are put before the court are possible because the Supreme Court in 2017 cemented the right to privacy in the Aadhar ruling. The honorable court in 2017 decided to strike down the practice of triple talaq as unconstitutional. In 2018, the SC ruled that IPC Section 377 would be deemed unconstitutional to the extent that it criminalized homosexuality and in the same year gave the verdict in favor of women in the Sabarimala temple entry case stating that religious practices that are discriminated against on the basis of gender are unconstitutional.