Congress leader Rahul Gandhi on Sunday tweeted that consent is an ‘underrated’ concept in Indian society but it should be foregrounded to ensure safety of women. The comment came amid the hearing at the Delhi High Court of a batch of petitions seeking to make marital rape a criminal offence.
In no time, swords were drawn on social media between his supporters and critics. The Delhi High Court is hearing a challenge to the constitutional validity of the ‘marital rape immunity’ provided for in the Indian Penal Code. The case has put the spotlight on this crucial issue which otherwise is not much discussed.
Earlier, while hearing the petitions on overturning the marital rape exception in rape law, the Delhi High Court judge had asked why the legal response should be different for a married woman and a sex worker.
Consent is amongst the most underrated concepts in our society.
It has to be foregrounded to ensure safety for women. #MaritalRape
— Rahul Gandhi (@RahulGandhi) January 16, 2022
What is the case
A two-judge Delhi High Court bench is hearing a constitutional challenge to the exception to Section 375 of IPC.
Section 375 of the Indian Penal Code (IPC) is commonly known as the ‘marital rape exception’.
Section 375 of IPC defines the offence of rape (sexual intercourse by a man, against a woman’s will or consent).
It sets out in some detail the circumstances under which it can be determined that consent has been vitiated.
Section 375 defines rape and lists seven notions of consent that, if vitiated, would constitute the offence of rape.
The exception is ‘sexual intercourse by a man with his own wife, not being under fifteen years of age, is not rape’.
This exemption is being challenged as unconstitutional as it undermines consent of a woman based on her marital status.
What is the government’s stand?
In an affidavit, the Centre defended marital rape immunity to protecting the institution of marriage.
The governmen’’s arguments spanned from protecting men from possible misuse of the law by wives.
Solicitor General Tushar Mehta also told the court that wider deliberations are required on the issue.
He brought to court’s notice a 2019 committee set up by Home Ministry to review criminal laws in the country.
The Delhi government too has defended the law on the ground that married women have other legal recourses.
Women who have been subjected to rape by their husbands can file for divorce or a case of domestic violence.
They argue since the law on restitution of conjugal rights is valid, so is the exception to marital rape by extension.
Restitution of conjugal rights is a provision in personal laws and not in penal laws and is currently under challenge.
Recommendations for removing ‘exception’
In 2013, the J S Verma Committee set up to look into criminal law reforms had recommended removing the marital rape exception.
Although it implemented several key progressive recommendations by the committee, the law was not changed by government.
Petitioners argue the provision was inserted before Constitution came into force, so provision cannot be presumed to be constitutional.
The J S Verma Committee recommended training and awareness programmes should be provided to common people.
It said people should be aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife.
