Delhi High Court Push On Marital Rape Is A Case Of Fools Rushing Where Angels Fear To Tread

The Delhi High Court is needlessly holding a gun to the government’s head on the issue of marital rape. Egged on by woke feminists and an amicus curiae, Rebecca John, with similar credentials, the court yesterday (21 February) asked the government to “bite the bullet”, as if it were some issue with no societal ramifications.

The two-judge bench, comprising justices Rajiv Shakdher and C Hari Shankar, gratuitously added: “A decisive executive has to say yes or no. Nobody stops the executive from changing its stand.” Judgement has been reserved and the court will give its orders on 2 March. One wonders how “decisive” courts themselves have been in resolving legal disputes in marriages, leave alone the matter of rape, but that is another matter. Thus, while the highest court has decriminalised adultery, another constitutional court now wants to hasten towards criminalising forced marital sex without considering the social consequences.

The point here is not to dismiss forced sex within marriage as something on which we don’t need to do anything. At the very least, we need to educate and gender-sensitise our population on rape, including marital rape. We could also mandate behavioural counselling for couples when such issues are brought to the law’s notice. But rushing to criminalise marital rape is clearly not something any government or legislature should be forced to do without deep thought. If forced sex within marriage is not something we can accept as normal, forced legislation handed down by woke judges in our constitutional courts cannot be right either.

The Centre took what looks like an entirely reasonable stand when it said that it had to consult many stakeholders on a matter that involves society, family and other institutions, including state legislatures. Even assuming the Centre was merely stalling for time, the court had no business to rush to judgement.

In fact, the Delhi High Court has made mistakes and worked under questionable assumptions while trying to rush judgement on these petitions.

First, it erred in using a woke feminist as the amicus curiae, when it should have sought a more balanced perspective or appointed two of them, including one who could champion the other side of the argument. (Read John’s views on the subject here)

Second, it should not be jumping in to make laws to push for radical changes that society itself is not ready for. Law-making can indeed precede social change, but trying to do what elected representatives should do is not the court’s job, except in extreme circumstances. It is, in fact, a gross misuse of its powers to make the law under Article 142 of the Constitution. The court is not meant to solve all of society’s problems on its own.

Third, it has not considered the reality that any sudden and dramatic change in the law will probably bring in third parties – the police, lawyers, etc – into the picture, thus inserting “the agency problem” into the equation. The agency problem is defined as one where an agent (like a lawyer, or board of directors) is appointed to protect one’s interest, but the agent’s motives may not be fully aligned to that of the person appointing him or her. A lawyer, thus, would have a reason to prolong a case (which a client may be inclined to settle) since his fees depend on this. A policeman may be inclined to register prima facie doubtful rape cases since this puts him in a position of power to extract illegal bribes from both parties. This is what we are asking for if we impose a marital rape law without considering the consequences.

Fourth, excluding forced sex within marriage from the definition of rape (as is now the case under section 375 of the Indian Penal Code) did not happen only because of patriarchy. The reality is that in most marriages, the two partners work out (over time) the level of give and take in the relationship, either explicitly or implicitly. If one partner wants more sex, the other may willy-nilly consent because of the other benefits the marriage brings. In a sense, this means consent to sex is partially the result of a bargain the couple has struck for larger reasons that go beyond their own personal inclinations. Criminalising forced sex within marriage will mean bringing all these delicate issues out in the open as legal fodder, when these are best left to marital counsellors to sort out.

Fifth, if a woman alleges marital rape, it is more or less certain that her marriage has broken down. It is difficult to see how the marriage can continue smoothly after this charge has been made in an open legal forum. The logical way out for her is to file for divorce citing this as the problem. It should not require her to prove rape, which anyway is difficult to prove when it happens within closed doors, and usually out of earshot of witnesses.

The Delhi High Court has taken a woke route to decide a problem that it is not equipped to deal with. It should refrain from making the law when wiser heads in legislatures are unsure about how to proceed. Fools rush where more cautious heads fear to tread.