India Staff Correspondent Sambhav Sharma reports on the Delhi High Court’s consideration of whether rape within marriage should be criminalized, and comments on extraordinary threats to counsel by parties objecting to their professional positions on the matter argued in court. He files this for JURIST from New Delhi.

For over two weeks now the Delhi High Court has been addressing the issue of whether ‘marital rape’ should be criminalized. The ongoing matter, titled RIT Foundation v. Union of India, has been heard by the division bench of Hon’ble Justices Rajiv Shakdher and C Hari Shankar since the first week of January.

On Friday, at the completion of the second week of the hearings, counsel representing both sides expressed their concern about facing discrimination and threats from the public for their submissions in court. It comes as a surprise, and a rather disagreeable one, that in a constitutional democracy such as India, advocates are facing difficulties while not only expressing their own beliefs, but arguing matters in open court.

Before we address this issue, however, it is imperative to understand the subject of the proceedings. The batch of petitions in the present matter challenge the exception No. 2 to Section 375 of the Indian Penal Code (IPC). Section 375 IPC deals with the offence of Rape, and defines what constitutes the offence. It further provides for an exception where the sexual act by a man on a woman would not fall within the ambit of ‘Rape’ as an offence. This exception states that any acts of sexual nature, performed by a man with his wife, would not constitute the offence of rape, as long as the wife is above the age of 18. This exception has been popularly termed as the ‘marital rape’ provision, which allows a man to rape a woman, as long as he is betrothed to her.

Those in favour of exception No. 2 to Section 375 IPC cite the concept of holy matrimony and that a husband can never rape his wife, because marriage somehow offers an implied consent for any sexual acts between the couple. However, those opposing it question the absence of active consent of the wife, and the lack of redress available to her in cases where the husband forces any form of sexual conduct that would otherwise constitute the offence of rape within the meaning of Section 375 IPC.

This exception of ‘marital rape’ has now come to be questioned in court. RK Kapoor, advocate for NGO Hridey (one of the Respondents) submitted on 25^th January that forcible sexual intercourse between a husband and his wife in a marital relationship cannot be labelled as rape and at worst, can only be called a sexual abuse. He further submitted that if ‘marital rape’ or certain sexual acts of the husband are criminalized, it would gravely hurt the institution of marriage.

Rebecca John and Rajshekhar Rao, Senior Advocates serving as amicus curiae in the matter, expressed that the right to sexual and bodily autonomy must prevail in such cases. This implies that the woman must not be compelled to enter into sexual acts with the man solely because he is her husband. Hon’ble Justice Hari Shankar agreed in principle with them on the point of sexual autonomy of a woman.

While the matter is being extensively argued on merits from both sides, the counsels have expressed valid concerns about personal remarks and threats being directed at them for representing their respective sides. Amicus curiae Rebecca John told the court that she has been facing hate and criticism for her stand in court. She further submitted that many have been urging her to recuse because of her stand favouring criminalization of marital rape. The same criticism was cited on Friday by other counsel in the matter. J Sai Deepak, advocate representing the Men Welfare Trust, submitted Friday that misreporting in the media has let to severe criticism being levelled at him and the organization he represents. While clarifying, he stated that the Trust is not in favour of spousal violence, but his submissions against the criminalization of the exception No. 2 to Section 375 IPC are purely on questions of law. In response, Karuna Nundy, senior lawyer representing Petitioner NGOs RIT Foundation and All India Democratic Women’s Association, submitted that she too has been getting flak for her views. She went on to say that she has actually been receiving rape threats from many, but since that does not concern the facts of the case, there is no point in addressing such issues.

Ironically, while these alleged threats have no direct bearing on the facts of the case, they go on to show two things. Firstly, that certain sections of the Indian public are extremely intolerant, so much so that they criticize and interfere with the working of the advocates and the proper functioning of courts of law. Secondly, the fact that rape threats are being given to women who are merely doing their job signifies the mentality of the population. While on the one hand the court is addressing whether marital rape should be criminalized, on the other hand, these criticisms suggest that women are treated with disrespect in every sphere of life. No wonder there is opposition to women enjoying bodily autonomy when they cannot even enjoy professional autonomy and the freedom of expression without condemnation.

The question of criminalizing marital rape is not one that has been raised recently. It is an ongoing debate that must be decided once and for all. An answer must be found to the question of why married women are treated differently than those who aren’t married, and why acts that would normally constitute rape are excused behind the curtain of matrimony. The fundamental fact remains that every woman enjoys the same right vis-à-vis her body and nothing should compel her to do anything against her will. These recent proceedings have shed some much needed light on the matter. What remains to be seen is how the it unfolds in court.