Ravi Kaustav Reddy, B.A. LL.B. (Hons.), School of Law, Christ (Deemed To Be University)
ABSTRACT
The debate over marital rape is unique to Indian jurisprudence. It is, one way or another, well-settled in other nations. In ours, the courts seem both keen to strike it down, but also wary of the consequences that such judicial action may entail. Currently, section 375 of the Indian Penal Code classifies rape as a criminal offence; but the same provision exempts a man who rapes his wife from criminal liability. This exception, named Exception 2 to Section 375 has become the subject of heavy constitutional discourse. Several jurists, judges and legal scholars argue that the provision is unconstitutional. The scholarship seems to convey that the provision is indeed unconstitutional, but public opinion is in favour of retaining the exception, citing a need to protect the institution of marriage and the judiciary’s encroachment into the legislative domain.
The most decisive judgement ever delivered on marital rape is found in Independent Thought v. Union of India. While the legal arguments advanced by both sides in this case will also be discussed owing to their relevance to the project, the paper will mostly focus on analysing the case from the perspective of a sociological theory. For this purpose, I have chosen to apply the feminist theory of rape, finding it the most appropriate in the context of the case. The project will present a brief summary of the facts, and then a detailed analysis of the case from this theory, and test the arguments made in court from a sociological lens. Finally, the project will draw a conclusion about the judgement on the basis of the theory.
The debate over the constitutionality of exception 2 to section 375 has reached a boiling point, with it being challenged in the Delhi High Court, in what will become a landmark judgement in criminal and constitutional law – the case of RIT Foundation v. Union of India. In light of that, it becomes important to revisit Independent Thought, to understand the rationale that the Supreme Court of India had used in that case and seeing if it finds support in the feminist theory of rape. The soundness of this rationale will be important in RIT Foundation, as the case will undoubtedly either affirm or at least partially overrule Independent Thought, making it necessary to review this judgement.
