The Centre's concern that criminalising marital rape may destabilise the institution of marriage is a "legitimate" one and doing so may require spouses to draw up a detailed agreement before sex or invite a third party to act as witnesses, Delhi High Court judge C. Hari Shankar said as he declined to strike down the marital rape exception in a split verdict delivered on Wednesday.
In a marriage, conjugal expectation is a two-way street, where "consent is given as a part of spousal intimacy although the will to engage may be absent," Justice Shankar said.
If every such case was treated as marital rape, "then the only way partners in a marriage may survive would be by drawing up a detailed written agreement and the steps to be observed for courtship or mating or, by creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness — none of which is healthy for the survival of the institution of marriage."
He disagreed with the argument that consent alone mattered and marriage changed nothing and said marriage is accompanied by obligations that the partners have to bear including conjugal expectations, financial obligations and, finally, duty towards progeny.
"Therefore, the legislature has consciously avoided using the word rape in the context of spousal relationships, not to protect the spouse but those connected with them, namely, families and the progeny," the judge said.
Harping on the importance of conjugal rights in marriage, Justice Shankar said the same was recognised in the Hindu Marriage Act which provides for restitution of conjugal rights. "The remedy is available to both spouses and denial of sex by either spouse is construed as cruelty and, thus, is available as a ground for divorce."
He also underlined the signs of injury on a partner need not necessarily mean there has been non-consensual sex as "in the age of sexual liberation" injuries could be a sign of "passion". He was referring to sado masochistic sex.
“Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse as is clear upon perusal of the definition of ‘cruelty’ found in Section 3 of the D.V. Act. A wife cannot prescribe a particular punishment that can be imposed on the husband ‘to satisfy her ego’,” Justice Shankar said.
The definition
Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides a definition for domestic violence, which includes physical, sexual, verbal and emotional abuse.
The judge felt that the issue of marital rape required consideration of social, cultural and legal aspects and the wisdom of the legislature needed to be respected and decisions on the matter should be left to Parliament.
In February, Minister for Women and Child Development Smriti Irani told Parliament, "to condemn every marriage in this country as a violent marriage and to condemn every man in this country as a rapist is not advisable in this august House." The government in Parliament and before the court has repeatedly said that it is in the process of a consultative process on marital rape to seek the opinion of all stakeholders for comprehensive amendments to criminal laws.
In 2017, when the Delhi High Court was hearing the matter, the government, in its affidavit, submitted that it had to be ensured that marital rape doesn't become a phenomenon that destabilises the institution of marriage and an easy tool for harassing the husbands. It added, "what may appear to be marital rape to an individual wife, it may not appear so to others."
This stance derives from the 167th report of the department-related Parliamentary Standing Committee on Home Affairs on the Criminal Law (Amendment) Bill, 2012 that was drafted following the Justice J.S. Verma Committee report that also called for criminalising marital rape.
