NEW DELHI, Oct 17: The Supreme Court on Thursday questioned the logic behind a penal law which considers wrongful confinement, criminal intimidation and assault of a wife by her husband as offences but not the act of forced sex which follows after the woman relents under pressure.
“The husband demands sexual intercourse. Wife resists. She is wrongfully confined. She is threatened and criminally intimidated. The wife finally succumbs [to pressure]. So all the preliminary acts make offences under the law, but the act of forced sexual intercourse alone is not a crime?” Justice J.B. Pardiwala asked.
The question came on the first day of hearing a batch of petitions seeking criminalisation of non-consensual sexual acts in a marriage as ‘rape.’ The petitioners have argued that protection given to non-consensual sexual acts by a man with his wife violated the woman’s right to bodily integrity, autonomy and dignity.
However, a recent affidavit filed by the Centre said punishment of non-consensual sexual acts in a wedlock and categorising it as rape would impact conjugal relationship and lead to “serious disturbances” in the institution of marriage.
The petitions variously seek to strike down the exceptions in Section 375 of Indian Penal Code (IPC) and Section 63 of the Bharatiya Nyaya Sanhita (BNS), which replaced the colonial Code earlier this year. Exception two of Section 375 (rape) of IPC excludes non-consensual sexual intercourse by a husband with his wife, if the latter is over 15 years of age, from the definition of rape. A similar Exception in Section 63 (rape) of BNS rules out forced sexual intercourse by a man with his wife, aged over 18 years, as rape.
Chief Justice of India D.Y. Chandrachud, who heads the three-judge Bench also comprising Justice Manoj Misra, drew attention to the fact that the definition of rape was not restricted to peno-vaginal sexual intercourse, and even included heinous acts such as insertion of a foreign object into a woman.
“The insertion of a foreign object into a woman amounts to rape if done by a stranger but not by her husband,” the Chief Justice pointed out the incongruity in the law. The Chief Justice asked senior advocate Karuna Nundy, who represented the All India Democratic Women’s Association and opened the case for the petitioners, about the government’s argument that the removal of the martial rape exception would destroy the institution of marriage. “Protecting a married woman from rape would not destroy the institution of marriage. Marriage is personal and not institutional… Sexual choices and consent are essential attributes of autonomy,” Ms Nundy responded.
The Bench wondered if the court would create a new offence and enter into the domain of Parliament by reading non-consensual sexual acts within a marriage as rape. To this, Ms Nundy replied that the only thing the court would do by striking down the Exceptions was to bring the IPC and BNS in line with the Constitution.
She argued that both BNS and IPC recognised the offence of rape but excluded a man entirely on the basis of his status as a husband. His status alone grants him immunity from being charged with the offence. “Sexual autonomy is at the core of the guaranteed freedoms in the Constitution. Taking it away through marriage is antithetical to Constitutional values… A woman’s sexuality is not purely a physiological attribute. Even in the most private instances of marriage, the individual does not lose her dignity or individuality,” she submitted.
Ms Nundy argued that “a rapist remains a rapist, and marriage with his victim does not absolve him of the crime.” She referred to how the apex court had struck down the penal provision of adultery, which was an example of a patriarchal provision. “A married woman was treated as chattel,” she submitted.
Justice Pardiwala asked how it could be perceived whether a wife had consented or not to sexual intercourse in a marriage. The senior lawyer noted that consent to a sexual act by a woman would be “unequivocal and voluntary agreement”. This threshold applied to a married woman too. “The range of harm caused to a woman, if raped by a stranger, her husband or separated husband, is not different,” Ms Nundy said.
(Manas Dasgupta)
