What Do We Want A Marriage To Be, That's The Question

When hearing appeals on marital rape verdict, courts must recognise autonomy of married women

- Mihira Sood

Yesterday, a two-judge bench of the Delhi high court delivered a split verdict on a batch of petitions that challenged the colonial-era exception to Section 375 of the Indian Penal Code. While Section 375 defines the offence of rape, the exception that follows states, “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.”

Justice Rajiv Shakdher held that the exception violates the right to equality enshrined in the Constitution, while Justice C Hari Shankar upheld the provision. The matter will now be heard in appeal.

What’s the courts’ duty?

Among lawyers, the primary argument used to justify the legalisation of marital rape is that the court cannot make laws. This is misleading. The law already exists, and it is well within the court’s remit, indeed it is the court’s job, to examine the constitutionality of laws and strike down those which do not pass the test. When a court refuses to do so, it is not respecting the separation of powers, it is abdicating its duty.

The argument that the courts cannot create a new offence is also incorrectly made in this case, for the offence already exists. Removing the exception to it does not amount to creating a new offence.