Legal Aid Society, Campus Law Centre, University of Delhi


May 27, 2022 Uncategorized 3952

The authors, Ms. Mahika Pant and Ms. Trisha Gupta, are final year students of LL.B. at Campus Law Centre, University of Delhi.


It is funny how a difference of 5 minutes before and after marriage can decide if a woman was raped or not. A split verdict given by a Division Bench of the Delhi High Court reflects two different ideas of marital rape, thus ensuring a future hearing in the Supreme Court of India.

The historical background of this issue traces back to the Bengal Phulmani case of 1889, where a 35-year-old husband raped his 11-year-old wife resulting in her death. Subsequent to this, the British government raised the age of consent from 10 years to 12 years. This move offended many sections of the society who considered it an infringement upon the institution of marriage, their customs and religion.

Our patriarchal society is obstinate about accepting the societal changes that come along with progress, evolution and empowerment, so the Government struggles to interfere with personal laws. The intricacies involved with such a move, the potential side effects for marital relationships and the flipside of wrongful accusations are all strong deterrents. This mindset is prevalent in other countries as well. Justice Hale (1736) in his History of Pleas of the Crown said that, “A husband cannot be guilty of rape committed by himself upon his lawful wife.”

It is unsettling to see that we are still governed by the colonial mindset and the same is reflected in Justice Hari Shankar’s split verdict. Firstly, he enlarges the idea of the institution of marriage over the bodily autonomy of the wife saying, “Sex between a wife and husband, whether the petitioners seek to acknowledge it or not, is sacred.” and “sex without consent is completely antithetical to the very institution of marriage”. This raises an eyebrow on the question of consent. However, on the other side of the argument, it is succinctly put by Justice Rajiv Shakdher that a sex worker has been invested with the power to say ‘no’ by the law, but not a married woman.

Marriage is an institution where two individuals come together to form a healthy, trustworthy and respectful bond. However, women have been treated as chattel right from Kanyadaan where she is gifted to her husband by the father. This flippant notion goes against the autonomy of the individual and the right of every person to make essential choices which affect the course of life, as was stated by Dr. D.Y. Chandrachud, J. in Justice K.S.Puttaswamy (Retd) v. Union of India. In a relationship where a husband and wife should be treated as equals, women are expected to be acquiescent, obeying their duties towards husbands, children, in-laws and other relatives. According to the National Family Health Survey 5 (2019-21), “Among married women aged 18-49 who have ever experienced sexual violence, 83% report their current husband and 13% report a former husband as perpetrator”.

Secondly, Justice Hari Shankar questioned whether “her experience” is the same as that of a woman who is ravaged by a stranger” and concluded that the acts of a stranger results in far greater trauma than that committed by one’s spouse. We see that it is a common assumption, that women cannot be raped by family members as we cannot fathom a daughter being raped by her father or husband. This does not negate the fact that it happens. It is a gross violation of relationships which are supposed to be based on love and sentimental ties. The institution of marriage is about more than just procreation, it is about companionship and mutual respect.

Thirdly, the judge focused on how the Indian women will be reluctant to file a complaint against their husbands. However, even if we are to consider this reasoning, the question that arises is, are we doing justice to all those other women who are willing to raise their voices against oppression? One person can inspire a whole lot and what starts out linear, becomes geometric.

Fourthly, Justice Shankar based his reasoning on the point that it is not within the court’s jurisdiction to create a new offence as it comes under the functions of the legislature. We need to understand that a new offence is not being created but merely an exception is being striked out from an existing offence which is well within the four corners of the court.

On the other hand, Justice Rajiv Shakdher’s reasoning was lauded by many wherein he upheld the bodily autonomy of women, striking down the exception as unconstitutional. Appearing on behalf of the petitioners, Advocate Karuna Nundy’s argument was supported by Justice Shakdher who concluded that the exception violated the right to life, equality, non-discrimination and freedom of speech and expression under the Constitution. The exception violates Article 14 as it creates a classification of women based on the marital status of the victims like unmarried women, live-in or divorced partners, married women and separated women. Also, such a classification has no reasonable nexus with the object of the statute to criminalise rape which is to prevent and punish non-consensual sexual intercourse. It also violates married women’s rights guaranteed under Article 21 of the Constitution.

To Counter Misuse

Every new provision added or repealed has its own implications. We cannot deny that various sections of the Indian Penal Code have been misused but this does not mean that the offence was never committed. A holistic view needs to be undertaken of the fact that women lose their identity or have it merged with that of their husbands at the time of marriage; this fact not only gives men legal authority over women but also validates the force used on her. One of the general legal principles followed around the world is that a law, if made to protect some, cannot be discredited solely on the ground that it can be misused. Justice Rajiv in the split verdict mentioned that the notion of false cases is not backed by any empirical data and that the courts are fully equipped to deal with the same.

While the criteria for determining the charges of rape should be the violation of consent, it’s true that the testimony of the victim cannot be the only evidence. The offence has to be proved beyond reasonable doubt. The data by the NCRB shows that the conviction rate for the offence of rape is fewer than 30%, keeping in mind that most of the incidents go unreported. Furthermore, the accused has a right to legal representation and present evidence that is contrary to the complainant’s claim. In the worst-case scenario of the chargesheet being filed, the accused has the right to file an application for the discharge of such a chargesheet and stop the court from framing charges. Section 482 of the CrPC can be used to quash an FIR even before trial, given that necessary evidence is provided.

The legislature can restrict the time period to lodge the FIR or ask for a preliminary investigation in the matter by taking into consideration the statements of neighbours, family and friends. The accused can also seek compensation under malicious prosecution for being falsely implicated. This in turn can be treated as a valid ground for divorce under cruelty as there is nothing more left to save in the marriage.


India follows a dualistic policy and it has become essential that we incorporate international laws into our municipal laws. In RIT Foundation v. Union of India and others, Senior Advocate Rebecca John, citing the Vishaka & Ors v. State of Rajasthan & Ors and Independent Thought v. Union of India judgment, stated that, “It is now a settled position of law that international conventions and laws can be read into our domestic law. India’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women also require and provide for Exception 2 to Section 375 to be struck down.” 

The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 gang rape case also recommended the same.

In a recent progressive judgement by a single-judge bench of Justice M Nagaprasanna, the Karnataka High Court said, “A man is a man; an act is an act; rape is a rape, be it performed by a man the ‘husband’ on the woman ‘wife’,” thereby refusing to quash the FIR on the ground of the said exception.

As Goethe holds, “One man’s word is no man’s word; we should quietly hear both sides.” The gruesome shadow of patriarchy has clenched our chains to the everlasting furnace of women holding the burden of societal norms, making it all the more difficult for them to raise their voice for basic fundamental rights such as dignity and bodily integrity. An appeal has been filed in the Supreme Court of India against the split verdict. We hope the judgment edifies women and honours their right to bodily autonomy by taking a leaf out of the books of other countries in criminalising marital rape.


(The views and opinions expressed in this article are authors’ own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)

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