Justice Rajiv Shakdher of the two-judge bench held that Exception 2 under Section 375, which says that any sexual acts by a husband with his wife are not rape, is unconstitutional, while Justice C Hari Shankar held that the provision is valid and that there's no ground for the court to strike the exception down.
While this section has undergone a series of amendments over the years, emphasising the importance of consent, this pre-colonial exception of marital rape continues to exist even in the 21st century.
Essentially, this exception allows marital rights to a husband who can, with legal sanction, exercise his right to consensual or non-consensual sex with his wife.
But what happens next, and what does this verdict mean for the conversation on marital rape? And where does the case go from here?
To understand the verdict and its significance, I'm joined today by The Quint's Legal Editor Vakasha Sachdev, and Radhika Roy, an advocate based in Delhi and former Associate Editor at LiveLaw.
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[00:00:00] On the long standing question of criminalising Marital Rape, The Delhi High Court on 11th May delivered a split verdict in a patch of petitions challenging the exception provided to Marital Rape in the Indian Penal Code. In the two judgements, Justice Rajesh Akhder held that
[00:00:28] exception 2 under Section 375 which says that any sexual acts by a husband with his wife are not rape is unconstitutional. While Justice C. Hari Shankar held that the provision is valid and that it holds no grounds for the court to strike down the exception. While
[00:00:43] this section has undergone a series of amendments over the years where it emphasises the importance of consent, this precolonial exception of Marital Rape has continued to tag along into the 21st century. Essentially, this exception allows Marital rights to a husband
[00:00:56] who can with legal sanction exercise his right to consensual or non-consensual sex But what does this split verdict mean for the conversation of Marital Rape? What happens next and where does this case go from here? To understand this verdict and its significance,
[00:01:10] I am joined today by the Quint's legal editor, Vakashasas Devth and Radhika Roy an advocate based in Delhi and former associate editor at LiveLog. In his part of the 393 page verdict, Justice C. Hari Shankar said that exception 2 in the
[00:01:41] IPC Section 375 which defines rape does not violate Article 14 in Article 21 of the Constitution on equal protection under law and the right to life and liberty. This is what he said and I quote, introducing into the Marital relationship the
[00:01:56] possibility of the husband being regarded as a vice-rapeist if he has on one or more occasions sex with her without her consent would in my view be completely antithetical to the very institution of marriage as understood in this
[00:02:09] country both in fact and in law. End quote. He also said that quote, sex between a wife and husband whether the petitioners seek to acknowledge it or not is sacred. End quote. And that quote, if the wife refuses and the husband
[00:02:22] nonetheless has sex with her, however one may disapprove it cannot be equated with the act of ravishing by a stranger. End quote. Reacting to the verdict advocate Radhika Roy says that the judgment is extremely disappointing and that it
[00:02:34] also signals that there may be other judges who share the same opinion. I'll be very honest Justice Hari Shankar's verdict has been incredibly disappointing especially because as a judge I've read a lot of the judgment and
[00:02:47] he's someone who's very stout about upholding the law as such and he's not someone who gives very unreasonable verdict. I initially thought when I was going through it that maybe his reasoning would be stemmed in law
[00:03:03] per se but it just come out to be incredibly irrational like the one thing that he's hopped on about throughout the judgment is about how marriage is the end all and be all of a woman's existence and especially like in society
[00:03:17] itself and that's why just to preserve marital union you need to ensure that you know this legitimate expectation of sex is duly discharged by the woman. So it's he's completely erased a woman's right to bodily autonomy and her
[00:03:36] right to dignity or a right to even make a choice and did not expect that from a judge like Justice Hari Shankar so very disappointing and that too this was a Delhi High Court so to think that a judge at this stature has these kind of
[00:03:50] viewpoints it kind of you know it goes to show that there might be a lot more judges who think along the same lines and there's no room for progress if this is the kind of mentality which is prevalent in this day and age at least.
[00:04:06] She adds that even though Justice Hari Shankar acknowledges the fact that there has been a transformation in the interpretation of this exception he did not go forward with it. Our constitution is transformative for a reason like you cannot when this
[00:04:20] exception came up in fact in the judgment it says Justice Hari Shankar very categorically says that the exception was brought in by the legislature because of the differences between how a man and a woman move
[00:04:33] about in society like husband is supposed to be at a superior stature than the wife but he himself says that this thought process has changed and now the legislature's intention to keep this exception is that it has to preserve the marital union.
[00:04:53] So even though he's acknowledging the fact that you know fine there has been some transformation in the interpretation of this exception he is not going forward with it like this may have been true 40-50 years back but at this point
[00:05:09] I feel like he has a duty especially with judge judgments like Puttus Swami with Joseph Shah. I mean he should have taken those into consideration and realized that fine things have changed and a marital union is not everything like individual
[00:05:26] rights are very important at the state women's rights are very important at the state these are conversations I mean women's rights are dominating every conversation that is out there so why would you not take that into consideration I mean it's just it's preposterous to be very honest.
[00:05:42] However there is something hopeful which has come out of this judgment and that is Justice Rajesh Shakde's part of the verdict. Justice Shakde said that the exception in question is court steeped in patriarchy and misogyny and that quote-unquote classification in my opinion is
[00:05:56] unreasonable and manifestly arbitrary as it seems to convey that four six outside marriage is real rape and that the same act within marriage is anything else but rape. In court he said that sexual assault by the husband needs to be called
[00:06:09] out as rape as that quote-unquote is one of the ways in which the society expresses with disapproval concerning the conduct of the offender. Permanently he said that quote the right to withdraw consent at any given point
[00:06:20] in time forms a core of the woman's right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her which is her dignity bodily integrity autonomy and agency and the
[00:06:35] choice to procreate or even not to procreate end quote. Advocate Roy hopes that Justice Shakde's verdict may be put into account as the case moves forward. Given the fact that judgments coming out of the apex court over the past few years have been geared towards upholding individual rights.
[00:06:49] Over the past at least few years, the kind of judgments that are coming off from Supreme Court they've been geared towards upholding individual rights and there are a lot more liberal interpretations of our constitutional rights as such a fundamental right.
[00:07:07] That does ignite some hope because they know that for a fact that these are the kind of they know for a fact that citizens themselves will not be okay with this kind of a word. The thought process of at least people around me, people in court.
[00:07:25] I have been in the court for the past two days and the reception towards such a judgment has been quite it's been unanimous. People are quite sure that you know such a judgment could come out from the Delhi High Court itself.
[00:07:39] You could understand if it was some far off high court but not Delhi. So there is a bit of hope that Justice Shakde's point of view may be followed by the Supreme Court taking into account their previous decisions and fact the submission thing as well which happened yesterday.
[00:07:59] So that's about it. But I am still disappointed about the fact that Justice Hari Shankar could still think that way because like I said before that means there are other people who might be feeling the same way.
[00:08:12] Now both the Delhi High Court judges have agreed to grant a certificate of leave to the petitioners for appeal before the Supreme Court saying that the matter involves substantial question of law. So what happens next?
[00:08:22] Will this case now be heard by the apex court or a larger bench? For this we go to Vakash Shasday, the Queen's legal editor. So it's an institute where you have a split verdict. What this basically means is that you now don't have a decision
[00:08:34] decision by the High Court. So essentially when you have benches of the court, the idea is that they will arrive at a decision unanimously. Now one of the reasons why at all the time you will see odd numbers
[00:08:46] are then even numbers is because judges are allowed to disagree. So what happens when they take a differing view on matters? Which is why of course when you have an odd number of judges on the bench whether it's three or five, then that makes it
[00:09:00] easier to obviously get a majority and a minority view. Now the thing is of course that in high courts you will have situations when it will be two judges, what's called a division bench hearing matters because high courts have a lot of issues.
[00:09:11] And the idea is that when you're dealing with issues where the law is technically supposed to be a bit more settled, a division bench is good enough. So it's where there's a risk that the law has already been previously decided or that there is some matter of dispute.
[00:09:27] That's where you get what they call a full bench of the high court will pick that up. Whereas when you have matters where the law appears to be reasonably settled, then you will at least in terms of what principles have to be applied,
[00:09:39] then a division bench is perfectly fine to take up the matter. But now of course when you come to a case like this, even though issues of privacy are concerned, even if you look at the right to privacy and autonomy have all been settled by the Supreme Court,
[00:09:52] the specific application of these principles to the marital rape exception was something which perhaps maybe should have been foreseen, could be looked at differently. I mean, there's an argument we made that the issues were so obviously
[00:10:06] dealt with especially when you look at the Hadiya case or the right to privacy case where this way, a person's bodily autonomy is considered so crucial. Or if you look at the Joseph Schein adultery case, which struck down adultery from the Indian People Court
[00:10:22] and how it talked there about these archaic provisions which keep an antiquated idea of marriage life need to go, I think perhaps when this was being considered, the idea was that this law is fairly settled. I mean, this was assigned to a division bench a long time ago.
[00:10:40] But whatever the reasoning behind not having more judges here, this matter was, is that now you've reached a position where both judges have taken an opposing point of view. You don't have a clear idea of what the court's decision is.
[00:10:51] So now a third judge has to get involved. The process for this is that, once there's a difference of opinion, the Chief Justice of the relevant High Court, in this case it's acting Chief Justice Dhanipanth Sanghi, will be looking at, will know about this issue.
[00:11:06] We'll have seen the judgments with the difference of opinion expressed by the two judges. And he will now on the administrative side have to appoint a third judge to hear the matter. Now this process could take a bit of time.
[00:11:16] The most recent, there was a high profile example of this was back in 2018, there was a split in the Madras High Court. There was a whole argument there over whether or not the, you know, certain, there was a disqualification of certain MLAs by the speaker of the House.
[00:11:32] And at that point, two judge went to taking opposing views on the legality of the speaker's decision. The third judge took a few months to arrive at the decision, end up siding with Justice Indira Banerjee. She was at that time the Chief Justice of the Madras High Court.
[00:11:49] She's currently a Supreme Court Judge. The third judge ended up siding with her, holding that the disqualification was perfectly acceptable. There was nothing wrong with it. It was in compliance with the 10th schedule. And as a result, that then became the Madras High Court's decision,
[00:12:05] which of course can then be appealed, which of course could be appealed. Now that's basically the status here, even when it comes to appeals in this case, you can't directly go to the Supreme Court. There is some questions over it because both judges granted need to appeal
[00:12:18] in their differing decisions to the Supreme Court. But that doesn't quite work. You know, I mean, you can't go directly there because there's still no decision for court. So even though there are questions of law, it can't go up to the Supreme Court at this stage
[00:12:32] because there's no decision yet to appeal. So that's the obviously, you know, the next step which has to be taken is that once the third judge makes a decision, then this can be appealed. And that's something that you can wait and see now
[00:12:45] with judge gets assigned how long they take. Now, as soon as the whole proceedings have to be argued, the third judge will be able to look at all the materials submitted, look at the arguments made, the records which are maintained by the High Court itself
[00:12:58] and use that to arrive at their decision. They can also call for any additional, you know, materials which are required or clarifications on the materials are resubmitted, which they can then use to arrive at their decision. And once they do that, then you'll see,
[00:13:12] do they side with Justice Shafdar and say that, yes, this provision is unconstitutional and needs to be struck down? Or will they go with Justice Harishankar's view which would allow the marital rape exception to continue at this point?
[00:13:23] And of course, while all of this is going on at this very moment, the pervade, the status quo prevails. Marital rape exception remains in force in our law. So, you know, it's, I think, you know, anyone who wants to really think about this
[00:13:39] in terms of fairness, I think, would have to argue that this is an absolutely egregious thing to happen. You know, I mean, there are some things where you can quibble about legal technicalities and say things. But I think here it was something where in fact,
[00:13:52] it was argued so clearly by the petitioners, by, you know, even the amicus curiae, Rebecca John, Senator Abhidra, Rebecca John who had given detailed submissions, which actually address all of the points raised in Justice Harishankar's view. So, I mean, we'll have to see what happens.
[00:14:11] One obvious thing is that, you know, the finality in this will have to go up to the Supreme Court on appeal or not. There are some ways in which maybe this matter could go to the Supreme Court before a third judge hears it,
[00:14:23] which is for instance, if it gets tagged with other matters related to the marital rape exception there. But it remains to be seen whether that will be an option at this point or whether it will have to first be decided
[00:14:33] by a third judge and then go up on appeal for arriving at a final decision in the apex court. If you like listening to this episode, please subscribe to the big story for episodic updates. They're available on Apple, Google Podcasts, Spotify, Geo7 and most of the other popular
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