Justice Hari Shankar refused to strike down marital rape under IPC : Marriage confers legitimacy to sexual activity

CASE: RIT Foundation v. Union of India

BENCH: Justices Rajiv Shakdher and C Hari Shankar

Section 375 exception 2 of the Indian Penal Code: Protection of man who has non-consensual sexual intercourse with his wife

A Delhi High Court (HC) bench delivered a divided verdict regarding the criminalisation of marital rape. Justice C Hari Shankar ruled against criminalising marital rape. He also refused to strike down Exception 2 to Section 375 of IPC. 

Section 375 of IPC, Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Source: indiacode.nic.in

Both the Justices differed in their opinion on this matter. Justice Shakdher, favored the exception of marital rape exception, stating it to be unconstitutional, and "steeped in patriarchy and misogyny”. Forced sex within marriage is anything else but rape. However, on the other hand, Justice Shankar said any assumption that a wife forced by her husband to have sex feels the same degree of outrage as a raped woman by a stranger, is not unjustified or even realistic. 

Justice C Hari Shankar further said that a husband forcing his wife to have sex with him is wrong. However, when a woman decides to marry a man, she willingly enters into a relationship in which sex is an integral part. In a marriage, a woman gives her husband the right to expect conjugal relations. Hence, the same cannot be equated with that rape. 

The judgment said that marriage confers legitimacy to sexual activity and one has the right to engage in sexual activity without social disapprobation. Introducing marital rape if a husband has sex with his wife without consent would be antithetical to the very institution of marriage. 

The judge said that the petitioners, as well as the amici curiae (impartial adviser to a court of law), have merely put forward their views as to what should be the laws. They failed to bring to show that act of sex by a husband without consent is legally rape.

The Court, therefore, said that marital rape is far from being unconstitutional. It serves in the pre-eminent public interest, aimed at the preservation of the marital institution, on which the entire bedrock of society rests.