Gender Equality Watch

Gender Equality Watch

This monthly series by Safecity will track the latest decisions of Indian courts on women’s rights and equal access for all genders. The aim is to make the functioning of our judicial system more accessible to readers, to create a well informed body of public opinion, and to ensure that we know our rights.

Written by Sanaya Patel*

Edited by Vandita Morarka

October 2017

Delhi High Court: Sexual intercourse with a minor wife (below 18 years) is rape.

Independent Thought v. Union of India

Date: 11 October 2017

Coram: Deepak Gupta and Madan Lokur, JJ.

Why is this judgment important?

Section 375of the Indian Penal Code, 1860 (‘IPC’) criminalises the act of rape. The second exception to that section used to read:sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

The exception to section 375 endorsed child marriage.

Under section 375 of the IPC, a man cannot have sex with a woman below the age of 18 years, even if she gives her consent. The law deems her as unable to give her consent. However, if the girl is married and is above the age of 15, then such consent is presumed, and her husband will not be guilty of the offence.

This exception is an anomaly because it allows intrusive sexual intercourse with minor girls (15 to 18 years) only on the ground that they are married. It is an unfortunate example of sanction to child marriage by the lawmakers of the country.

The exception legitimises marital rape.

In the case of married couples, the exception (wrongly) presumes the consent of the wife to sexual intercourse, thereby prohibiting her from exercising any choice in the matter. Marital rape was not in question before the Delhi High Court in this matter, and since it is being heard as a separate case by another Bench, the said Court did not comment on this question.

What the Court said:

“We are left with absolutely no other option but to harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.” It is only through this reading that the intent of social justice to the married girl child and the constitutional vision of the framers of our Constitution can be preserved and protected and perhaps given impetus.”(from Justice Lokur’s judgement)

The court has the power to “read down” the law, so that it no longer violates the provisions of the Constitution of India. The exception now reads as applicable to sexual acts committed with the wife being above the age of 18. The judgement indicates that a presumption of consent to matrimonial sex in the case of the wife is discriminatory and is a ray of hope for the petition challenging the exception, to criminalise marital rape.

2. Delhi High Court: Marital Rape Challenge adjourned to 4 December 2017.

RTI Foundation v. Union of India

Facts:

Petitions have been filed laying a challenge to Exception 2 to Section 375 and Section 376 of the IPC on the ground that it excludes marital rape as a criminal offence.The challenge is on the ground that this exception violates the rights of married women to equality, free choice and consent, and dignity, under Articles 14, 15, 19, and 21 of theConstitution.

Update:The matter has been adjourned for hearing on 4 December 2017. To read the written submissions of the petitioner,click here.

3. Delhi High Court: Silence about the incident is not proof of consensual sex.

Munna alias Rikas v. State (NCT of Delhi)

Date: 13 October 2017

Coram: Sangita Sehgal, J.

Facts:

The Delhi High Court was hearing an appeal against the conviction of a man, inter alia, for rape, by the trial court. Counsel for the convict stated that the testimony of the prosecutrix was unreliable, and further, that she had consensual sexual relations with the convict, which is evidenced by her silence about the incident.

Decision:

The Delhi High Court rejected the appeal, and upheld the conviction of rape. The Court held that “mere silence cannot be taken as proof of consensual sexual relations as she has also stated that she was being threatened by the accused. Thus, any act of sexual intercourse in the absence of consent would amount to an act of rape.”

Consent is defined in the second explanation to section 375 of the IPC as “unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act”. The proviso to that section is particularly significant as it states that the absence of physical resistance to penetration shall not (by itself) be regarded as consent.

This decision interpreted the definition of consent correctly when it noted that the mere fact of silence does not equal to consent. Consent, in all cases, must be expressed and voluntary (a positive act), and must not be inferred from the victim’s silence or lack of resistance (negative acts or omissions).

4. Himachal Pradesh High Court:Allowed the termination of pregnancy of 19-year-old girl suffering mild to moderate mental retardation.

[Petitioner] v. State of Himachal Pradesh and Others

Date: 17 October 2017

Coram: Dharam Chand Choudhary and Vivek Singh Thakur JJ.

Facts:

A 19-year-old girl, 32 weeks pregnant, approached the court with a request to terminate her pregnancy on grounds of threat to her own health. The medical board constituted by the Himachal Pradesh High Court, noted in its report that there is a threat to the mother as well as the child’s life.

Decision:

The Court gave directions for the abortion of the 32-week-old foetus, based on the report of the medical board. The board found that the foetus may have severe cognitive and motor impairments even after surgical procedure of delivery, and therefore advised the abortion of the foetus in the womb, as an exception to the 1971 Act.

This decision indicates the willingness of Indian courts to consider extraordinary situations in which allowing a woman to carry her pregnancy to full term is a threat to her own life and safety. It recognises a woman’s right to life and personal liberty, which includes the right to make reproductive choices, and therefore makes an exception to the rule in the 1971 Act which prohibits termination of a pregnancy beyond 20 weeks.

5.Supreme Court of India:Abortion: Husband’s consent not required

Date:27 October 2017

Coram:Chief Justice Dipak Mishra, A.M. Khanwilkar and D.Y. Chandrachud, JJ.

Facts:

A husband and wife were separated between 1999 and 2002. They resumed living together in 2002. In 2003, the woman terminated her pregnancy at a hospital in Chandigarh, despite her husband’s refusal to sign the hospital papers. Her husband filed a suit in the Punjab and Haryana High Court, seeking damagesinter alia(amongst other things) for the mental trauma caused to him due to the abortion of the child without his consent. He alleged that his wife’s act was illegal under the Medical Termination of Pregnancy Act, 1971. The High Court dismissed the husband’s suit. The case came up for hearing before the Supreme Court of India on Friday, 27 October 2017.

Decision:

A three-judge Bench of the Supreme Court stated that under the 1971 Act, a husband’s consent is not required. Noting the strained relationship of the couple, the Supreme Court stated that the woman’s decision to terminate the unwanted foetus was “right”. In 2011, the Punjab and Haryana High Court, while deciding the matter, said that a woman’s consent to matrimonial sex does not mean consent to conceiving a child.

The affirmation of the High Court’s decision by the Supreme Court of India is significant for women’s rights in India. Where the penal provisions for rape currently render the wife’s consent to matrimonial sex nugatory, the apex court’s decision is a step towards the recognition of a woman’s right to choice and bodily autonomy.

*Sanaya Patel is a Research Assistant under the Policy and Legal Team at Safecity (Red Dot Foundation).