Sexual autonomy of women is non-compromisable and females are equal to men in every way that matters, Justice C Hari Shankar of the Delhi High Court said on Wednesday. However, the judge refused to hold as unconstitutional the exception in law which grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives.

Justice Shankar said that provisions in the penal law that compromise on woman’s right to freedom of sexual choice, either regarding the person with whom or when to have sex, or that prohibit a person from prosecuting an offender for having committed a statutory offence, or that violate any of the fundamental rights would necessarily be unconstitutional. The impugned exception, however, does none of these things, though counsel for the petitioners, who seek to have the provision done away with, would emphatically urge to the contrary, he said in his 200-page judgement.

The issue of criminalisation of marital rape witnessed a split verdict from a division bench of the high court with Justice Rajiv Shakdher favouring striking down the exception in law which grants protection to husbands from being prosecuted for non-consensual sexual intercourse with their wives, Justice Shankar refused to hold it as unconstitutional. However, both the judges on the bench concurred with each other for granting the certificate of leave to appeal to the Supreme Court in the matter as it involves substantial questions of law that requires a decision from the top court.

While Justice Shakdher, who headed the bench, favoured striking down the marital rape exception and said it would be tragic if a married woman’s call for justice is not heard even after 162 years since the enactment of the Indian Penal Code, Justice Shankar said the exception under the rape law is not unconstitutional and was based on an intelligible differentia having a rational nexus with the object of the exception as well as section 375 (offence of rape) of the Indian Penal Code (IPC) itself. The petitioners had challenged the constitutionality of the marital rape exception under section 375 of the IPC on the ground that it discriminated against married women who are sexually assaulted by their husbands.

Under the exception given in section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape. In his verdict, Justice Shankar said, Just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape, howsoever much counsel for the petitioners might want it to be.

The foundation of the petitioners’ case is, therefore, with all due respect to counsel, fundamentally flimsy. A castle cannot be built on reeds, he said. He said as most of the submissions proceeded on the premise that any and every act of sex by a man with a woman against her will is necessarily rape, irrespective of the circumstances in which they were situated and the relationship between them, the main issue of whether the exception is unconstitutional, was lost in the clamour.

The question of whether the unique demographics of marriage, which unquestionably extend to the sexual sphere as well, would, or would not, justify a differential treatment being extended to sexual acts within marriage, even if non-consensual, was not, I am constrained to observe, debated with the seriousness it deserves, he said. Justice Shankar said that women are morally, legally, spiritually, and in every other way that matters, equal to men.

Sexual autonomy of women is non-compromisable, he said, adding, The chance chromosomal circumstance that makes one a man and the other woman has, with the passage of time, ceased to have any significance worth the name. He said the court has only to decide whether, in excepting from the sphere of marriage any allegation of rape, the legislature has acted unconstitutionally. To urge that rape, per definition, is non-consensual sex by a man with a woman, is just as simplistic as the contention that murder, per definition, is the taking of the life of one man by another, Justice Shankar said.

He said the challenge to the provisions by the petitioners cannot sustain. Justice Shakdher, in his 193-page separate judgement, regretted that he was not able to persuade Justice Shankar to his point of view and said he, perhaps, hears a beat of a different drummer. I respect that.

The court’s verdict came on PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. In its 2017 affidavit, the Centre had opposed the pleas, saying that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.

However, the Centre told the court in January that it was “re-looking” at its earlier stand on the petitions as that was brought on record in the affidavit filed several years ago. In February, the Centre urged the court to grant more time to enable it to state its stand on the issue after a consultative process, but the prayer was turned down.

NGO, Men Welfare Trust (MWT) had argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.

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