Judge’s appointment coincides with marital rape case reaching SC

NEW DELHI: Call it a coincidence or a curious turn of events, the movement of the marital rape case from high courts to the Supreme Court has come just in time when a high court judge who holds strong views in favour of criminalising marital rape has been elevated to the apex court.

Justice JB Pardiwala, formerly of the Gujarat high court, joined the Supreme Court bench on May 9. On the next day, a top court bench led by Chief Justice of India NV Ramana agreed to examine if a man can be tried for raping his wife despite immunity against marital rape provided to husbands under the Indian Penal Code (IPC).

On May 11, after two judges gave a split verdict, the Delhi high court held the issue of marital rape requires a decision only by the Supreme Court.

Interestingly, justice Pardiwala’s engagement with the issue of marital rape started four years ago when he delivered a judgment in the Gujarat high court in April 2018, calling it a “disgraceful” offence that scars the trust and confidence in the institution of marriage.

“A large population of women has faced the brunt of the non-criminalisation of the practice... Marital rape ought to be a crime and not a concept... It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status,” said justice Pardiwala, as he dealt with a man’s petition to quash the charge of marital rape against him.

Justice Pardiwala asserted that making marital rape an offence will remove the destructive attitudes that promote it. “Recognition coupled with criminal punishment should deter husbands from raping their wives.

Women should not have to tolerate rape and violence in a marriage,” he added.

Justice Pardiwala batted for a statutory abolition of the marital rape exemption under Exception 2 to Section 375 in the IPC, emphasising “the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalised”.

Citing the law against domestic violence, the judge also rebutted the argument that making marital rape an offence will be disastrous to the institution of marriage. “It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not,” he reasoned, adding that husbands need to be reminded that marriage is not a licence to forcibly rape their wives.

However, justice Pardiwala had to eventually quash the charge of marital rape in this case in view of the absolute immunity IPC gives to husbands.

While the judge’s 2018 judgment made the strongest-ever pitch by a constitutional court to criminalise marital rape, justice Pardiwala commenced yet another scrutiny of the marital rape clause three years later.