The marriage may be between equals or unequals it may be good or bad it may be happy or sad in every case, however, the factum of marriage, and the relationship between the parties that emerges consequent to the solemnisation of marriage, have their own distinct and identifiable indicia, not to be found in any other relationship between any two individuals. “The demographics of a marriage are sui generis. The ‘institution of marriage’, and the intelligible differential. Justice C Hari Shankar while upholding the constitutional validity of the exception clause.
In spite of the fact that the split judgement has ultimately left it to the Supreme Court to decide upon the constitutionality of the exception clause, it has put forward substantive arguments, both in favour of and against striking down the exemption clause. The judgement delivered by the Delhi High Court is reflective of both these sentiments. Another argument made by those favouring retaining the exception is that striking it down will result in the creation of a new offence which is a clear case of judicial overreach. Those opposing the move argue that the criminalising ‘marital rape’ amounts to undue interference in personal matters and “would cause a death blow to an institution of marriage”. Those seeking to make ‘marital rape’ a punishable offence argue that the exception provided under Section 375 of IPC to the ‘marital rape’ stems from the “doctrine of overture” which makes women subservient to men post marriage.Īnother argument made by the those who want to make ‘marital rape’ a legal offence is that it is violative of Article 14 and Article 21 of the Constitution which guarantees equality before the law to everyone irrespective of religion, race, caste, sex, or place of birth and right to life and liberty, respectively. With this split judgment and consensus on the point that substantial questions of law are involved, it is the Supreme Court that will decide on this issue now.
The division bench consisting of Justices Rajiv Shakdher and Hari Shankar gave a split judgement, with Justice Rajiv Shakdher declaring the exception to marital rape as enshrined in Section 375 Indian Penal Code as unconstitutional and Justice Hari Shankar upholding the constitutional validity of the exception clause.
Now, Delhi High Court on 11 May, delivered its verdict on the bunch of petitions challenging the constitutional validity of the exception granted to ‘marital rape’ in the IPC. The Law Commission of India when confronted with this issue, in its 172nd report titled ‘review of the rape laws’, published in 2000, clearly stated that it was “not satisfied that exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship”. And, it is this exception that has been challenged before the court on several occasions. Section 375 of the Indian Penal Code (IPC) which defines rape exempts forceful sexual intercourse by a man with his own wife from being categorised as rape, provided the wife is above 18 years of age. The judiciary and legislature in India for decades have been grappling with the question that whether acknowledging and penalising ‘marital rape’ would amount to overreach or not, and whether it amounts to an invasion of the personal space of its citizen.
However, this “sacred institution” faces tough scrutiny when profanities of a crime like rape enter its sanctified territory. It is sanctified by social mores, shielded from any outside interference through societal norms, and decorated and celebrated with a halo of sacredness. When analysed beyond the legal framework, marriage is essentially an institution that operates in an interpersonal space. The personal experiences of women were said to have links with political and social structures which in turn impacted their interpersonal space. The adage tended to address the gender disparity in terms of structural inequality. The “personal is political” became a rallying cry of the second-wave feminism that took place in Europe.