[Marital Rape] Expectation of sex in marriage cannot result in forceful sexual relations: Rebecca John

If marital rape is criminalised, charges of attempt to rape will also be attracted against a husband, Senior Advocate Rebecca John told the Delhi High Court on Friday [RIT Foundation v Union of India]..John has been arguing as Amicus Curiae in a batch of petitions demanding the criminalisation of marital rape.The petitions have challenged Exception 2 in Section 375 of the Indian Penal Code (IPC) that exempts husbands from being charged with the said section even if they establish sexual relations with their wives without consent..A Division Bench of Justices Rajiv Shakdher and C Hari Shankar has been hearing the arguments..On Friday, John argued that if the exception is struck down by the Court, then Section 376B of the IPC and Section 198B of the Code of Criminal Procedure (CrPC) would also have to go.While Section 376B deals with punishment for sexual intercourse by a husband on his wife during separation, 198B is a procedural provision which says that no Court shall take cognisance of an offence under 376B except upon a prima facie satisfaction of the facts.“The Verma Committee had recommended deletion of Exception 2. But this was not acceded to in the 2013 Act. It is my understanding that as some kind of compromise, 376B was introduced, making it rape when sexual intercourse takes place between husband and wife when they are living separately. What is interesting is that even when the wife is living separately, Parliament though it necessary to insert the word consent...In a sense, Parliament realized that they may not even be living together, but some element may have broken down. To that extent, this was a kind of compromised provision. There was demand for removal (of the exception) but Parliament did not think it fit to remove, but brought in 376B,” she said.She added,“If you read 198B CrPC, it says no court shall take cognisance of an offence under 376B without prima facie satisfaction of facts. Is this coming from a gendered resistance to removing the exception? Or does it have any logical basis, because in no other provision the complainant or victim has to meet this level of satisfaction.”.The Senior Advocate argued that a husband does not have a right to conjugal relations, but there certainly exists an expectation. Yet, that expectation cannot result in forceful sexual relations.“This whole argument is predicated on the fact that the husband has right to conjugal relations. My submission is that there is no right. There can be expectation from both sides. But the expectation cannot then result in forceful sexual relations. They can have a dialogue based on that expectation. If the wife withdraws from sexual relations, the way to resolve is through dialogue. I don't want to trivialise it. It is about a man exercising his dominant right over his wife despite her saying no. It may result in anything. The husband may be right and the wife may be unreasonable. But there is no right, there can be an expectation which cannot lead to forcible sex with the wife. That is my complete answer.”.On the question of whether the exception would have survived if the Section was gender-neutral, John argued that this exercise was done in the Criminal Law Amendment Ordinance of 2013, which existed only for a month. She said that if the entire Section was gender-neutral, then it would have been protecting the marriage, and not just the right of one party.Citing the Independent Thought judgment of the Supreme Court, John submitted that the institution of marriage does not need protection and that a gender-neutral section would create a false equivalence that the two spouses are equal even as it is not the case in reality.“This would disregard the reality. Several sections as well as legislation recognize the gender inequality within a marriage. There is a gendered aspect to these provisions based on the lived experience of women.”.John referred to the Criminal Justice and Public Order Act of the UK and the Verma Committee report to highlight that even in these gender-neutral provisions, though the victim was referred to as a ‘person’, the perpetrator remained a man.It was submitted that the petitions had been filed before both the Delhi High Court as well as the Supreme Court to do away with these gender-specific provisions on the grounds that they are discriminatory. But each the time, the courts have held that these provisions are protective discrimination..The Court will now continue the hearing on Monday when John will refer to several other criminal law provisions introduced post 2013 that deal with harassment as well as the intent to outrage a woman’s modesty, but have no exception for husbands or marriage..Exception for marital rape under Section 375 IPC must be viewed as an instrument of oppression: Rebecca John