Jahanvi Agarwal
Justice Deepak Gupta, former Supreme Court justice, lectured on the topic “Developments in Fundamental Rights in Last Decade” and discussed his opinions on marital rape against the backdrop of the right to privacy.
When questioned about his opinions on the matter of marital rape, which is up for decision at the Supreme Court, he responded:
“Women has a right to say no. She has a right to say no to her husband also. …Just because you are husband and wife, wife does not have a right to say no to have sex? When she says no then it means no. There is nothing more to it. It is a very simple argument. It is just that we have to outgrow our patriarchal and archaic system of thought. Otherwise, there is nothing. This is the most simple thing on earth.”
In the Independent Thought v. Union of India[1] verdict, Justice Deepak Gupta was a member of the Supreme Court panel which was chaired by Justice Madan B Lokur. The case determined that having a sexual relationship with a minor wife under the age of 18 constitutes the crime of rape.
Section 375 of the IPC, defines rape as any sexual assault involving non-consensual contact with a woman. However, under Exception 2 to Section 375, sexual activity between a husband and a wife older than 15 years of age (which Independent Thought interpreted as 18 years) does not qualify as “rape” and is therefore exempt from prosecution.
The bench modified the “15 years” stated in Section 375 of the Indian Penal Code’s Exception 2 to “18 years.” However, the aforementioned judgment expressly left the issue of marital rape unresolved.
A group of petitions arguing against the IPC’s provision for marital rape resulted in a split decision on May 11, 2022, from a division bench of the Delhi High Court consisting of Justices Rajiv Shakdher and C. Hari Shankar.
In contrast to Justice Hari Shankar, who supported the exception’s legality by stating that it was “based on an intelligible differentia,” Justice Shakdher declared the exception to be unconstitutional. The judges granted leave of appeal to the Supreme Court since there were significant legal issues at stake.
Currently, the Supreme Court is hearing a number of petitions on this matter. In the case Hrishikesh Sahoo and State of Karnataka & Ors[2], the Karnataka High Court held the prosecution of a man for raping his wife. It is noteworthy that the Karnataka High Court stated the following in the aforementioned judgment:
“A man is a man; an act is an act; rape is rape, be it performed by a man, the husband, on the woman.”
[1] 2017] 10 SCC 800.
[2] MANU/KA/1175/2022.