Marital rape hearing in Delhi HC: The right to sexual autonomy and bodily integrity is derived from Article 21 of Constitution, say petitioners [Read the written submissions]

In the case of RIT Foundation v. Union of India, a series of petitions demanding the need to criminalise marital rape are currently being heard by a bench of the Delhi High Court. A marital rape victim joined the petition as intervener and demanded justice for herself and millions of other married women who are victims of the current patriarchal, antiquated law. A bench comprising acting Chief Justice Gita Mittal and Justice C. Hari Shankar is hearing the petitions. Advocate Karuna Nundy is appearing on behalf of petitioners, RIT Foundation and All India Democratic Women's Association.

The petitions challenge Exception 2 to Section 375 which says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape. The Petitions also challenge Section 376B of the IPC, which says that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. This differential punishment has been challenged as being arbitrary and unconstitutional.

In a hearing earlier this month, the High Court heard submissions made by petitioners. In impactful written submissions to the Court, Advocate Karuna Nundy highlighted the gross violations of principles of natural justice and fundamental rights under Article 14(right to equality), Article 21(right to life), Article 19(1)(a)(right to freedom of speech and expression) and Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.) of the Constitution that will continue till marital rape is criminalised.

A brief outline of the written submissions filed on behalf of petitioners are given below:

• Challenging the Exception 2 to Section 375 of the Indian Penal Code, 1860, which creates the "fiction of legal marital rape", the submission claims that millions of women are legally raped in their marriages.
• The right to sexual autonomy and bodily integrity is derived from Article 21 of the constitution, and the apex court of the country recognised the same last year in a nine judge bench judgment in Justice (Retd.) KS Puttuswamy v. Union of India, expressly stating that the right to life of every citizen is to be guarded by the state, and is to be comprehended as not just a bodily right but a right in the fullest sense.
• A number of disturbing statistics were highlighted such as one by a study in RICE Institute relying on the data collected from National Crime Records Bureau(NCRB) and National Family Health Surveys which reported that the number of women who experienced sexual violence by husbands was forty times the number of women who experienced sexual violence by non-intimate perpetrators. The UN Women Global Database also reports that the proportion of women aged 18–74 experiencing intimate partner physical and/or sexual violence at least once in their lifetime is as high as 37%.
• Pointing out that the Exception 2 to Section 375 was drafted in 1860, an era of Victorian patriarchy where women were not seen as equals of men, it is argued that there is a need to acknowledge the defect in the law, keeping with the principles of the constitution we adopted in 1950 and the status of equality and dignity that it accords to all citizens.
• It wasn't until the Criminal Law Amendment Act of 2013 that sexual intercourse with a separated wife without her consent was criminalized. The victims of marital rape can seek some remedy under Sections 354 and 377 of the IPC, but they are far from the protection needed to address this grave injustice.
• The submission calls attention to the violation of multiple fundamental rights of women due to the present legislations:
  • The impugned provision becomes void ab initio because of its inconsistencies with part III of the Constitution, as per Article 13 (the claim has been strengthened by the strong stand taken by the apex court against such inconsistent provisions in landmarks like Romesh Thapar v. The State of Madras, Shreya Singhal vs. Union of India and Shayara Bano's case, among others).
  • Provisions in the IPC and CrPC classify victims of rape based on their marital status, i.e., married, married but separated, or unmarried. This classification lacks intelligible differentia between the harms they suffer and is without a plausible rational nexus to an object sought to be achieved by the criminal law. These are pre-requisites of making any classification as stated by Article 14 (reliance placed on the firm stand taken by the Supreme Court in Air India v. Nargeesh Meerza against arbitrary classification, particularly ones that are "an open insult to womanhood").
  • The provision also contradicts Article 15 as it is discriminatory and placing women at an unequal footing within their marriages, assuming non-retractable consent. The Supreme Court has laid down that classification can only be used to promote equal opportunities and alleviate the status of women, but not to perpetuate their legal and social inferiority
  • Violating a fundamental freedom, the impugned provision denies a married woman the right to say 'no' in a marriage. It further attacks her right to life and violates her dignity, denying her bodily integrity, right to refuse participation in sexual activity and to make reproductive choices. The court has laid emphasis on the right to live with dignity in a number of important decisions such as Suchita Srivastava v. Chandigarh Administration, Prem Shankar Shukla vs. Delhi Administration, Francis Coralie Mullin vs. Administrator, Union Territory of Delhi, D.K Basu vs. State of West Bengal, et cetera.
• Despite suggestions by the Justice Verma Committee Report to strike down the impugned Section, the state has failed to take the necessary steps to criminalise this offence. With this stand, India is violating its international obligations under the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights and Convention (ICCPR) on Elimination of All forms of Discrimination Against Women (CEDAW), all of which strongly seek parties to these treaties to respect all citizens without any form of discrimination on the basis of gender.
• Other common law countries like Canada, Australia and UK have laws in place to criminalise marital rape, and Nepal had joined that list as early as 2002, which makes India shockingly behind the progressive world at the moment.
• The written statement directly challenges the oft sought defense of how the provision criminalising marital rape is bound to be misused. The argument shows willingness of certain members of society to allow millions of women to suffer in silence, simply because a law preventing their fundamental rights from being violated, will be misused and thus shall not be passed. There exist sufficient remedies for misuse of law which aggrieved parties can turn to in cases of false allegations. It is argued that if this weak excuse is to be resorted to, why must laws like the Protection of Women from Domestic Violence Act, 2005, and the directions in Lalita Kumari v. State of UP requiring mandatory registration of FIRs in the interest of victims, exist in our jurisprudence?

The statement appeals against 150 years of legalised rape and seeks constitutional remedy for married women.

The Delhi High Court has been hearing arguments of the government.

Read the full text of the written submissions here.