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  • The Delhi HC has delivered a split judgement regarding the criminalisation of marital rape. Justice Rajiv Shakdher ruled in favour of striking down Exception 2 to Section 376 IPC whereas Justice Hari Shankar observed that the striking down of the same would create a new offence.
  • In RIT Foundation vs Union of India and other connected matters, emphasising the institution of marriage, Justice Shankar observed that it is plain and clear that the primary distinction that distinguishes the relationship of wife and husband from all other relationships of women and men is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex. The sexual aspect is but one of the many facets of the relationship between a husband and wife, on which the bedrock of their marriage rests.
  • He further observed that any legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, was in his view, completely immune to interference.
  • Justice Shankar further went on to say that any assumption that a wife, who is forced to have sex with her husband on a particular occassion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, is not only unjustified, but is completely unrealistic. Nor can the impact on the wife, in such a situation be equated with the impact of a woman who is raped by a stranger. The spouses, bu marriage, have a right to legitimate expectation of sex.
  • Justice Shakdher, on the other hand, held that sexual assault by a husband upon his wife which falls within the fold of section 375 IPC should be termed as rape. He observed that certain sexual offences need to be called out for what they are, oddly enough, society appears to stigmatise the victim rather than the rapist.
  • He also observed that when the State exempts criminal acts such as forced sex within the marriage, it unwittingly engages in unequal disbursement of rights conferred by the Constitution. Consequently, the husband does not suffer the rigours of the law, and the wife gets no protection from the law.
  • Observing that the same is in violation of Article 21 of the Constitution, Justice Shakdher observed that the fact that the rapist is also the husband does not make the act of sexual asault any less injurious or dehumanising, irrespective of who the perpetrator is, forced sex mars the woman physically, psychologically and emotionally. Rape deserves societal disapprobation in the strongest terms, and it does not matter whether the rapist is the woman’s husband.
  • It was also observed that the exception is also violative of Article 19(1)(a) of the Constitution as it violates the guarantee given by the Constitution concerning the freedom of expression to a married woman as a citizen of the Country. This freedom of expression includes a woman’s right to assert her sexual agency and autonomy.
  • Justice Shakdher gave five reasons as to why striking down the exception would not create an offence:
  1. The offence is already defined in the substantive part of section 375 IPC, and if the exception is excised, all that would happen is that it would extend the ambit of section 375 to include offending husbands.
  2. A new offence would perhaps be created if the ingredients of the offence had changed, however this is not the case.
  3. Reading down, filling gaps or excising parts of an offending provision is a legitimate judicial tool which has been employed by the Courts for severing what is unconstitutional and retaining what is lawful.
  4. The exception seeks to ring fence the offender based on his marital relationship with the accused, whereas the main provision is neutral to the relationship between the accused and the victim.
  5. Penal law is act or omission centric and is neutral to who the perpetrator of the crime is. The fact that in certain cases relationships enter the fray does not dilute the fundamental premise on which penal laws are pivoted, which is that it punishes the act irrespective of the offender.
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