New Delhi: The Supreme Court (SC) on Thursday struck down Section 497 and addressed the issue of marital rape as well in a covert manner. The five-judge bench unanimously struck down provisions of the adultery law under the Indian Penal Code (IPC) and said that “curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to Constitutional values”.
Justice DY Chandrachud without directly speaking on the matter said that “any legislation which results in the denial” of Constitutional guarantees to women “cannot pass the test of constitutionality”. Meanwhile, Justice Indu Malhotra said that “any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 (equality) and 15 (prohibition of discrimination) of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.”
In its 2017 affidavit to the Delhi High Court, the Central government took a stand against criminalising marital rape on the grounds that the institution of marriage will be in shackles. It further read, “As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken.”
The underlining of this principle as part of what the court has called Constitutional morality is likely to have a bearing where courts are examining the issue of criminalising marital rape.
Currently, the Delhi High Court is hearing a number of petitions that seeks to criminalise marital rape. The Centre had stated in its affidavit that whether a sexual act is a marital rape or not will be entirely upon the wife. According to the affidavit, “The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.”
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