A bench comprising Justice Rajiv Shakdher and Justice C Hari Shankar heard Advocate Karuna Nundy on Monday. During the hearing, the bench discussed in detail the possible reasons for this differentiation. Several remarks were made by Justice Shankar in the defence of the existing exception to the Section 365, marking the act of marital rape as being "qualitatively different" from other acts of rape that the Section 375 specifies, including "sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is less than 18 years of age."
Shankar, after hearing the petitions, elaborated on how having sexual relations with his wife is a husband's conjugal right and that there are certain expectations that both the husband and wife have to meet when tied together in the bond of legal marriage. He went on to add that any act of sexual intercourse outside marriage, between a couple can be considered as an act of rape as no legal or social right has been given to the man in this case. He went on to argue that "there is no marital rape in India" and that he has had his reservations on the same since the very first time the term was brought to legal attention as rape is a legally recognised crimial act and the term should be deployed scrupulously.
This exception has been deemed problematic and has sparked many debates that bring to the fore concerns regarding women's autonomy over their own bodies, their safety and rights. Recognising marital rape as the highest form of violence and knowing that many pleas on the issue go unnoticed and unheard due to judicial and legal loopholes,the petition against marital rape was filed by NGOs, RIT Foundation, All India Democratic Women's Association and two other individuals.
Advocate Karuna Nundy expressed her concern on the same, pointing out that, first, there is no presumption of constitutionality of a pre-constitutional provision. Second, striking down the marital rape exception will not create a new offence and third, the marital rape exceptions and impugned provisions fail to pass the constitutional tests of Article 14,15,19 and 21.
Presenting her case, she argued how it is necessary to criminalize marital rape, as women, already hesitate from reporting such cases and the current legal framework discourages them from speaking up even further. She also spoke against the classification of victims into categories based on marital status. Such a classification is unnecessary, as a victim is a victim regardless of her marital status.
Nundy expressed her concern on how the existing exception shields married men from the consequences of committing such a heinous crime and does not realise or recognise the agony of the victim. Nundy shed light on how the marital rape exception violates a woman's right to dignity, liberty, personal and sexual autonomy guaranteed under Article 21.
The case has once again brought to the fore the regressive and patriarchal mindset of the Indian society that fails to grant women autonomy over their own bodies. Oftentimes, cases of violence, abuse, torture and harassment in marriage are pushed in the realm of the private and not treated as real issues.
This is reflective of the constrained mindset of Indian society where women are seen as commodities owned by the man and marriage is viewed as the transference of power and control from one man to the other.
It is ironical and painful to witness loud slogans promising women empowerment in election rallies, guaranteeing a safe and equal space for women when at the same time, women struggle to seek proper legal treatment of a crime as heinous as rape.
Is it fair to treat women as vote banks whose cries are silenced as soon as elections end? One notes, unfortunately, the number of crimes committed against women in the country growing higher and higher each day.
When the situation is already so grave, sheltering abusers and rapists behind the shield of marriage erases the fear of consequences even further and normalises rape, as long as it is behind closed doors and with your husband.
Such loopholes in the legal system defeat the entire purpose of recognizing women as free independent beings who are to be seen as equals in the society.
How will the country's leaders ensure the safety of women on the roads when they stand at the risk of being abused in their own homes? Such loose ends must be taken into careful consideration immediately and tied so that the social fabric of the nation remains intact.