In this article published by the Indian Express, Jayna Kothari examines the recent split verdict by the Delhi High Court on the criminalisation of marital rape.
Excerpt from the Article:
The judgment by Justice Hari Shankar held that the marital rape exception in Section 375 does not violate the right to equality of married women….Thus, the refusal of a woman to have sex with her husband is seen as a mere disagreement in the bedroom which need not be taken seriously.
The dominant manner in which our courts have been framing theories of equality and equal protection of the laws under the Constitution has been inadequate, and this has muted the force of the constitutional challenges to the marital rape exception.
One of the grounds for justifying the exception by the court was that marriage is an institution which “reflects complete emotional and psychological unity between the man and the woman”. The reality is far from this. The National Family Health Survey-5 states that 29.3 per cent married women experience spousal physical and sexual violence. This shows that a third of the marriages in our country are structures of violence for women.
Finally, does the exception give married women “equal protection of the laws”, which the right to equality promises? Does not the “equal protection of the law” under Article 14 minimally guarantee equal protection to women under the Indian Penal Code against sexual assault, regardless of their marital status? By denying such equal protection, solely on the ground of gender and marital status, women are not recognised as rights-bearing persons within the marriage who ave equal protection of laws against violent sexual assault.
The object of the State in enacting Section 375 is not to protect marriages, but to protect all women against violent sexual assault. This constitutional fight must lead to the abolishment of all remnants of the marital exemption if we want full equality for women.