Sudipta re-examines the Delhi High Court’s split verdict of marital rape. Can a wife say no to sex? An exclusive for Different Truths.

In 2015, the RIT foundation of Delhi filed a petition in the Delhi High Court challenging the legitimacy of the ‘marriage exception ‘in the rape law. The high court issued a notice to the centre and Government. 

In 2016, the centre filed an affidavit that the marital rape cannot be criminalised. 

In 2017, the AIDWA organisation filed a similar appeal.  But centre opposed it by stating that the criminalisation of marital rape may “destabilise the institution of marriage”.

In December 2021, the hearing again resumed. In the subsequent months, the centre began to relook the matter and its earlier stand. Even the government had told the court that it had begun consultation with other states. 

At last, in May 2022, the Delhi High Court delivered a split verdict. 

Justice Rajiv Shakdher whereas favoured the criminalisation of marital rape, Justice C. Harishankar didn’t seem to agree with him. He, on the other hand, said that the provisions do not violate Articles 14,19 (1)A and 21 of the Constitution. 

Let’s discuss the exact matter.

Under the exception 2, provided in Section 375 of the IPC, sexual intercourse between a man and his wife is not rape if the woman is not a minor. 

It means a husband can forcefully uphold his sexual desire for his wife without her consent and against her will. It is not a crime at all. 

Given the current standard of the constitution, a non-consensual sex of a husband and wife will not be registered as rape.  

Let’s discuss the humanitarian value of a concept that I am going to represent.

The autonomy of a woman matters more than anything. Whether the woman is a sex slave? Why does she not imply her choice to have sex with her husband? Why there is coercion to have sex in our country after marriage? Marriage is a sacred institution that allows the equality of both parties(S\He) 

Then why a man as a brute with his bestial tendency begins to sexually torture his wife? Who has given him the right to smash and sabotage the sexual preference of her lady? A wife tolerates the sexual oppression with a sealed lip due to our societal and legal structure. Doesn’t it violate the right to live with dignity as conferred by our Constitution? 

How many articles are violated by these autocratic rules sanctioned by the institution of marriage which is ruling over ages in our country with a nonchalant mindset? 

When do we seriously rethink a denial of a lady for sex as a refusal to establish a physical relationship? If she is interested in sex with her husband, then why she will resist it? If a woman is forced to have sex, then in such a regressive society, who will save her from this known monster? All most all countries of the world have criminalized marital rape to restore the dignity of their women. Then what are we waiting for? Why will criminalisation of marital rape defile the sanctity of our marriage? The man who is wedded to a woman with the holy mantras of our sacred scripture should realise the importance of consent and marriage never allows a husband to tarnish the dignity of a lady and break her confidence in society. In our Hindu marriage, a married couple is always glorified on the high pedestal of our lives because of the grace and high values imbibed in them. 

So marital rape is as disgraceful as abduction or molestation or more heinous than rape where the consent of a woman is not considered. How long will we sit silently and enjoy the nasty and shameless vicious cycle of trauma borne by our mothers, sisters, or daughters? 

Picture design by Anumita Roy, Different Truths

Dr. Sudipta Mishra

Dr Sudipta Mishra is an Indian author and poet. She is an erudite scholar of English language literature in the Puri District of Odisha. She is a source of inspiration for the young generation of this country. Her free verse in romantic and melancholic poems is appreciated around the world. She has penned more than a hundred articles.