When does ‘Consent’ in Marriage End and the Sexual Act Transgress into Rape: Comment Upon Justice Hari Shankar’s Upholding the Constitutionality of the Marital Rape Exception

Abstract

The marital rape exception under Section 375 has been a topic of debate and discussion ever since its codification in the Indian Penal Code. The recent judgment by a division bench of the Delhi High Court gave a split verdict on whether or not to declare such an exception unconstitutional in light of transformative and progressive development of fundamental rights jurisprudence in the country. This case comment traces the origin of the marital rape exception then goes on to explore Justice C. Hari Shankar’s opinion on upholding the validity of this outrageous exception, while contrasting it with Justice Rajiv Shakdher’s opinion for striking down a legal provision which was in blatant violation of a woman’s fundamental right to dignity protected under the Indian Constitution. The comment delves into judicial precedents, scholarly work by authors, researchers and practicing advocates to substantiate the criticism of one opinion and appreciates the judicial wisdom and insight in the other opinion on the issue of how presumption of consent in marital sexual relations a violation of right to dignity of victim wives. The fact that the law on the present issue is not settled and it merits a decision by a larger bench is not forgotten.