Abstract

The RIT Foundation v. Union of India (2022) is a groundbreaking Delhi High Court case that questions the constitutional validity of the Exception 2 to Section 375 IPC which absolves marital rape of criminal responsibility. The case concerns the extinction of a right to consent in the woman who is married, which leads to the questions of equality, dignity and autonomy of the body. The split bench demonstrated opposite jurisprudence. Justice Rajiv Shakdher overturned the exception, claiming that no consent can be bargained on marriage and transformative constitutionalism. Justice C. Hari Shankar affirmed the exception, citing the importance of judicial restraint and legislative supremacy, and the concerns of evidence under Section 114A. This commentary compares and contrasts the two views and also points out serious weaknesses in the reasoning of Justice Hari Shankar, especially his undue faith in the judgment of the legislature and his reaffirmation of colonial-era beliefs of implied spousal consent. The split verdict is contextualized in the analysis by observing that the UK, Canada, South Africa and Nepal have already abolished the marital rape exceptions, and India remains behind in terms of gender protection. The commentary suggests such reforms as legislative abolition of the exception, gender neutralization of sexual offenses, evidentiary protections, and sensitization programs. Since the case is yet to be resolved by the Supreme Court, it will influence the Indian gender justice greatly as it will decide whether the country will follow transformative constitutionalism or remain legislative conservative in upholding the bodily autonomy and dignity of women in marriage.

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