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12th May 2022 (10 Topics)

What is the law on marital rape, and what has the Delhi High Court ruled?


A two-judge Bench of the Delhi High Court recently delivered a split verdict in a batch of petitions challenging the exception provided to marital rape in the Indian Penal Code (IPC).


About the case:

  • The court was hearing a clutch of four petitions challenging the constitutionality of the exception to Section 375.
  • Apart from the petitioners, who include the All India Democratic Women’s Association (AIDWA), the court heard several intervenors, including a men’s rights organisation.

Section 375:

  • Section 375 defines rape and lists seven notions of consent which, if vitiated, would constitute the offence of rape by a man.
  • However, the provision contains a crucial exemption: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”
  • This exemption essentially allows a marital right to a husband who can with legal sanction exercise his right to consensual or non-consensual sex with his wife.

Challenge to this exemption:

  • The exemption is also under challenge before the Gujarat High Court on the grounds that it undermines consent of a woman based on her marital status.
  • Separately, the Karnataka HC has allowed the framing of marital rape charges against a man despite the exemption in law.

What happens when a split verdict is delivered?

  • In case of a split verdict, the case is heard by a larger Bench.
  • This is why judges usually sit in Benches of odd numbers (three, five, seven, etc.) for important cases, even though two-judge Benches or Division Benches are not uncommon.
  • The larger Bench to which a split verdict goes can be a three-judge Bench of the High Court, or an appeal can be preferred before the Supreme Court.
  • The Delhi High Court has already granted a certificate of appeal to move the Supreme Court since the case involves substantial questions of law.

Takeaway from recent verdict:

  • Even though the court has delivered a split verdict, its intervention moves the needle in favour of doing away with the marital rape exemption in law. 
  • Also, the Supreme Court recently refused to stay the Karnataka High Court order that for the first time put a man on trial for marital rape.
  • The SC’s refusal to stay the order indicates that the higher judiciary is willing to carry out a serious examination of the colonial-era provision.

What is the law on marital rape elsewhere?

  • The marital rape immunity is known to several post-colonial common law countries.
  • Australia (1981), Canada (1983), and South Africa (1993) have enacted laws that criminalise marital rape.
  • In the United Kingdom, the House of Lords overturned the exception in 1991.
  • In their landmark decision in the case known as R v R, the Lords took the view that the time had “arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with his victim”.
  • They also said that the verdict was not creating a new offence, rather only removing a common law fiction that has its roots in ecclesiastical law.
  • Subsequently, in 2003 marital rape was outlawed by legislation in the UK.

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