This Case Summary is written by C. Risinath & S.Kanimozhi, fourth-year law students at The Tamilnadu DR. Ambedkar Law University, Chennai.

BACKGROUND

RIT Foundation v. Union of India is a case where a series of petitions demanding the need to criminalize marital rape is currently being heard by a bench of the Delhi High Court. The case was filed by RIT Foundation, All India Democratic Women’s Association (AIDWA) and two individuals. The marital rape exception under Section 375 of the Indian Penal Code (IPC) is unconstitutional because it gives primacy to the institution of marriage over the individuals in the marriage.

FACTS OF THE CASE

This petition was filed by RIT Foundation, All India Democratic Women’s Association (AIDWA) and two individuals. The poser before the court was if a husband should be held criminally liable for raping his wife who is not under 18 years of age. The moot point, as per Justice Rajiv Shakdher whether MRE (Marital Rape Exception, i.e., Exception 2 to Section 375 IPC) should remain on the statute. Those who wanted the striking down of MRE, in consonance with the arguments advanced by the said provision qua, also wanted Section 376B to be struck down, which concerns sexual intercourse by a separated husband with his wife, albeit without her consent. Consequently, prayer was also made for striking down Section 198B of the Code of Criminal Procedure, 1973 (‘Code’), which prohibits a court from taking cognizance of an offence punishable u/s 376B IPC except upon satisfaction of the facts which constitute the offence once a complaint is lodged by the wife against her husband.

ISSUES

1. Could the “social disharmony” and “damage to marriage and family systems” raised by the government in its 2016 affidavit arise or not?
2. Can the difference between a marital relationship and an act done outside of marriage be considered an “intelligible differentia” under Article 14?
3. Is bringing the marital relationship within the strict offence of “rape” necessary?
4. Whether a rape by a husband would also be subject to harsher punishment under the law?
5. Could someone be charged with “attempted rape” under section 511 of the IPC if the victim is their wife?
6. In a relationship where there is a sexual relationship, how would evidence of an “attempt” be considered?
7. Whether striking down “marriage exception” would create a new offence, i.e. will the court need to define the law around what kind of sexual acts or behaviour would fall under “marital rape”? 

CONTENTIONS

1. The rationale for preserving the marital rape exemption is that recognising marital rape as a criminal offence would destroy the institution of marriage.
2. In 2019 former Chief Justice of India Dipak mishra said that “marital rape should not be made a crime in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values’’.
3. Second, once a woman is married, she hands over-ending continuous sexual content to her husband.
4. Another argument is that since marriage is a sexual relationship, determining the validity of a marital rape allegation would be difficult. Women may misuse the law in marital rape.
5. Marital rape exception is inconsistent with other sexual offence which make no such exemption for marriage.Thus a husband may be tried for offence such a sexual harassment, molestation, voyeurism and forceable disrobing in the same way us any other man.
6. Marital rape exception is an insult to constitutional goals of individual autonomy, dignity and of gender equality.
7. Joseph Shine v. Union of India(2018), the SC held that the offence of adultery was unconstitutional because it was founded on the principle that a woman is her husband’s property after marriage.
8. The marital rape exception betrays a similar patriarchal belief: that upon marriage a wife’s right to personal and sexual autonomy, bodily integrity and human dignity are surrendered. her husband is her sexual master and his right to rape her is legally protected.
9. Article-21 of the constitution of India tells the right to live with human dignity and stands out among the most fundamental components of the right to life which perceived independence of a person.
10. Supreme court has held in a catena of cases that the offence of rape abuses the right to life and the right to live with human dignity of victim of the crime of rape.
11. State of Maharashtra v. Madhkar Narayanan, the SC has held that every woman is entitled to her sexual privacy and is not open to any and every person violating her privacy as and whenever he wishes.
12. Justice K.S. Puttaswamy v. Union of India, settled that the right to make  sexual decisions that envisaged is in the right to privacy.
13. The marital rape exception prima facie violates article 14 of the constitution as it creates the classification between married and unmarried and women and denies equal protection of criminal legislation to the former.
14. The UN(CEDAW) convention on eliminating all forms of discrimination against women, which India signed, has viewed that this sort of discrimination against women violates the principle of equality of rights and respect for human dignity.
15. Kerala high court “Treating wife’s body as something owing to husband and committing a sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompasses bodily integrity and any disrespect or violation of individual autonomy”.
16. Delhi high court- both men and women had a right to say no, and that marriage doesn’t mean consent.
17. In Bodhisattwa Gautam V. Subhra Chakraborty, the court held that rape is, to a lesser degree, a sexual offence than a demonstration of hostility for corrupting and mortifying the ladies. Therefore, the marital rape exception principle violates the spouse’s entitlement to live with human dignity.

FINDINGS

1. As observed by Justice Arjit Pasayat- “While a murderer destroys the physical fame of the victim, a rapist degrades and defiles the soul of a helpless female”
2. Justice Varma committee, after the Nirbaya case, recommended criminalising marital rape. It opined, “Marriage should not consider irrevocable consent to sexual acts” 
3. Citing the judgement of the European Commission of Human Rights in C.R. V. U.K, “A rapist remains a rapist regardless of his relationship with his victim”.

ANALYSIS AND REASONING

• Australia-(1976) made rape in marriage a criminal offence
• In the USA, between the 1970s to 1993, all the states made marital rape a crime
• The U.K. struck down its common law principle that a marriage contract implied a woman’s consent to all sexual acts.

CONCLUSION

Marital rape is the most common form of sexual violence reported by married women in India. Among married women (15-49 age) who were victims of sexual violence, over 83% reported their current husbands, and 9% reported a former husband as the perpetrator. There can be no compromise with a woman’s right to sexual autonomy, and any act of rape has to be punished. A married woman has the same right to control her own body as an unmarried woman. The judgement was only a step towards striking down the legislation of marital rape. It’s high time that the legislative body should take cognisance of this legal infirmity and brought marital rape within the purview of rape law by eliminating section- 375 (Exception) of IPC.

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