Where is justice lost…what happened in these five years? Many innocents are still behind bars and many accused are still roaming free. One of them has even become an MLA and minister on a Bharatiya Janata Party (BJP) ticket.

Five years ago, between February 23 and February 26, 2020, a conspiracy was hatched to light a communal fire in Delhi. The north-eastern part of the capital city was made the target of this attack.

About 53 people lost their lives in this communal violence. Hundreds were injured. There was huge loss of life and property in the violence that lasted for four days. Many houses and shops were burnt to ashes.

In common parlance, we call this a ‘riot’, but if the right words are used, it was an attack. A revenge against the Shaheen Bagh movement against the Citizenship Amendment Act or CAA. Statistics testify this.

Delhi Police figures say that among those killed, 40 were Muslims and 13 were Hindus.

Unfortunately, the government and the mainstream media largely reported one-sided stories and blamed the Muslim community for this violence. This is what is being propagated even today.

As per the Special Cell and Crime Branch of Delhi Police, there was a “deep conspiracy” behind the Delhi riots, the “foundation of which was laid” during the anti-CAA and NRC protests in 2019.

This conspiracy has been mentioned in case number 59/2020. Delhi Police considers former JNU student leader, Umar Khalid, as the “mastermind” of the Delhi violence.

Special Public Prosecutor Amit Prasad has argued that the violence was part of a conspiracy to create trouble during the visit of then US President Donald Trump to India.

The violence started in Jaffrabad in North East Delhi, where women were staging a sit-in protest against the CAA on the Seelampur-Jaffrabad-Maujpur Road.

At that time, the freshly minted BJP leader, Kapil Mishra (who had switched over from the Aam Aadmi Party), called upon Delhi Police to clear the streets, and threatening to do so himself with the help of his supporters. It is after this that the violence broke out.

Recall that despite all their efforts, BJP had badly lost in the Assembly elections held in February 2020.  Many analysts say that the stunning defeat had flustered BJP. (This year that defeat has been avenged. After 27 years, BJP has once again come to power in Delhi with full majority.)

The backdrop of the communal violence had already been created, but ultimately it is innocent people who became its victims.

In 2022, four former judges and a former Home Secretary had released a fact-finding report on the reality of the Delhi violence. The report had raised serious questions on the investigation by Delhi Police. Also, strong comments were made on the role of Union Home Ministry, Delhi government and the media.

The fact-finding report also found that speeches made by BJP leaders like Kapil Mishra had also played a role in instigating people, which led to the violence.

Social activist Harsh Mander had even filed a petition in Delhi’s Patiala Court saying that an FIR should be registered against Kapil Mishra. This petition is still pending in the court.

Notably, in July 2020, Delhi Police had told the Delhi High Court that no evidence had been found against Kapil Mishra and other BJP leaders’ speeches having instigated the violence.

The same Kapil Mishra has now become an MLA and minister by contesting the recent Delhi Assembly elections from Karawal Nagar on a BJP ticket. But there is no discussion in the media about his role in the 2020 communal violence.

According to various media reports, the police have registered a total of 758 FIRs related to the violence.

Some reports published in 2024 said a total of 2,619 people had been arrested, out of which 2,094 people are out on bail.

The court has so far found only 47 people guilty and has acquitted 183 people. Cases against 75 people have been dismissed due to lack of sufficient evidence.

Delhi Police has so far arrested at least 24 people, of which 10 have been released on bail in the case of Head Constable Ratan Lal, who was killed in the line of duty during the Delhi violence.

Also, the 11 accused arrested in the murder case of Ankit Sharma, who worked in the Intelligence Bureau, are still in jail. Sharma’s body was found in a drain in Chand Bagh on February 26, 2020.

Notably, the fact-finding report has put its finger on  another accused in the Delhi violence —  Delhi Police. Questions have been raised on the role of Delhi Police in allowing these riots to happen and for inaction and delay in stopping the violence. Besides, Delhi Police have also been accused on brutalities.

Hearing in a case related to the Delhi riots in September 2024, a court had acquitted 10 accused persons, raising questions on the ‘theory’ of Delhi Police. All the accused belonged to the Muslim community. They were accused of attacking a house and a shop in Gokulpuri police station area of ​​North East Delhi.

Additional Sessions Judge Pulastya Pramchala of Delhi’s Karkardooma Court had said that “suspicions over the allegations against the accused are not beyond doubt.”

During these four-five years, there were many such occasions during the hearing in the court, when the court made harsh remarks on the Delhi Police and described the level of their investigation as poor.

In August, 2023, while hearing the arrest of three people in the case of rioting in FIR No. 71/20 case of Dayalpur Police Station, Karkaduma Court had commented that the incidents had not been properly and completely investigated. It noted that the charge sheet in the case had been filed with prejudice in a bid to hide the mistakes made in the beginning.

Because of this kind of investigation and attitude of the police, many youth are still languishing in jail.

In November 2024, the Supreme Court refused to grant bail to Delhi riots accused Gulfisha Fatima, but asked the Delhi High Court to hear her bail petition soon. Senior advocate Kapil Sibal, appearing for Gulfisha, had said that she had been in jail for four years, and her bail petition had been pending in the High Court for a long time.

Earlier, on October 25, 2024, the Supreme Court had given a similar order in the case of another riot accused, Sharjeel Imam.

However, in March 2022 itself, councillor Ishrat Jahan, an accused in the violence, got bail. She was arrested by the Special Cell of Delhi Police under UAPA (Unlawful Activities Prevention Act).

The bail petition was filed in the court on behalf of former Congress councilor Ishrat Jahan, which said that the police did not have a single evidence against her.

Earlier, in June 2021, Delhi High Court had granted bail to Pinjra Tod activists Devangana Kalita, Natasha Narwal and Jamia student Asif Iqbal Tanha, who were arrested under UAPA Sections on charges of rioting.

At that time the High Court had said that giving inciting speeches or blocking roads is not unusual when there is widespread opposition to the actions of the government and Parliament. Even if we assume that the alleged inflammatory speeches, ‘chakka jam’, inciting women to protest and other acts, even if these violate the limits of the right to peaceful protest given in the Constitution, the act cannot be termed as a terrorist act, its conspiracy or its preparation.

Alas, Umar Khalid did not get bail or such comments.

Delhi Police’s Special Cell and Crime Branch consider Khalid to be the ‘mastermind’ of the Delhi violence. He has been in jail since September 2020. He has been charged with terrorism, rioting and criminal conspiracy under UAPA. The trial in this case has not started yet.

Umar Khalid’s bail plea has been rejected twice by two different courts, and hearings on his case have been adjourned umpteen times.

Khalid’s bail plea remained pending in the Supreme Court from May 2023 to January 2024, but the debate on it could not be started even once. After this, he withdrew his bail application from the Supreme Court and went back to the trial court.

On February 20, 2025, Khalid’s bail plea was heard in the Delhi High Court. During the hearing, his lawyer told the HC that merely being a member of a WhatsApp group was not evidence of involvement in any crime.

His lawyer Trideep Pais told the court that Khalid had been in custody as an undertrial for a long time. He said that the delay in the trial was also a reason due to which Khalid should get bail. The senior advocate argued that on the basis of equality with the four accused in this case who have been granted bail, Khalid should also be granted bail.

The bench headed by Justice Naveen Chawla has now ordered the next hearing on Khalid’s bail plea on March 4.

So, if we look at how justice has progressed in these five years, it can be said that while one set of accused —  Umar Khalid or Gulfisha or Sharjeel Imam — has not got bail yet, And one of the accused (although Delhi Police does not consider him an accused) Kapil Mishra has become an MLA and the Law and Justice Minister in the Delhi government. Along with this, he has got charge of Development, Art and Culture Department, Language Department, Tourism Department, Labour Department and Employment Department.

The session of the new Delhi Assembly has started. It would be fitting if a report on the progress of investigation in Delhi riots is tabled so that the country knows what the police under Home Minister Amit Shah did for justice in these five years.

(Translated from the original article published on Newsclick’s Hindi website)

Courtesy: Newsclick

The post 5 Years of Delhi Riots: Some Punished, Some Rewarded! appeared first on SabrangIndia.

Main Points:

Hizb ut-Tahrir was founded in 1953 in Jerusalem by Sheikh Taqiuddin al-Nabhani, a scholar of Islamic jurisprudence and former member of the Egyptian Muslim Brotherhood

Hizb ut-Tahrir’s ideology is rooted in a strict interpretation of Islamic governance. It rejects nationalism, democracy, and secularism, advocating instead for the revival of a unified Caliphate under Islamic law.

Hizb ut-Tahrir remains one of the most enigmatic and controversial Islamist movements in the modern era. With a highly disciplined structure and a clear ideological vision, it has survived despite decades of repression.

Hizb ut-Tahrir (HT), an international pan-Islamic political organization, has long been controversial and debated. Established in 1953, its stated objective is the re-establishment of the Islamic Caliphate, which it sees as the only legitimate governing system for Muslims worldwide. While the group insists on non-violent means to achieve its goals, many governments have outlawed it due to its radical political ideology.

This article explores the origins, ideological framework, leadership perspectives, and legacy of Hizb ut-Tahrir, relying extensively on quotes from its leaders and publications.

Origins and Early History

Hizb ut-Tahrir was founded in 1953 in Jerusalem by Sheikh Taqiuddin al-Nabhani, a scholar of Islamic jurisprudence and former member of the Egyptian Muslim Brotherhood. Nabhani, disillusioned with what he saw as the secularization of the Arab world and the failure of existing Islamist movements, sought to create a political party that would focus on re-establishing the Caliphate as a comprehensive solution for Muslim governance.

Al-Nabhani emphasized that HT’s methodology was unique compared to other Islamic movements:

“We do not engage in practical politics in the sense of seeking power through participation in existing regimes. Our work is solely intellectual and political, aimed at changing the minds of the Ummah (Muslim community).”

From its inception, HT focused on recruiting members through intensive ideological training rather than mass activism. The party quickly spread to Jordan, Syria, and other parts of the Middle East, but it faced immediate repression from regional governments, many of which saw its calls for an Islamic state as a direct threat to their authority.

Ideological Framework

Hizb ut-Tahrir’s ideology is rooted in a strict interpretation of Islamic governance. It rejects nationalism, democracy, and secularism, advocating instead for the revival of a unified Caliphate under Islamic law.

The Role of the Caliphate

The Caliphate, according to HT, is the only legitimate system for Muslims because it is divinely mandated. The party argues that all Muslim-majority countries today suffer from “man-made” laws rather than divine rule, leading to corruption, oppression, and weakness.

As Abdul Qadeem Zallum, a later leader of HT, wrote:

“The Ummah has been living in darkness since the destruction of the Caliphate in 1924. Only by re-establishing it will Muslims regain their dignity and rightful leadership in the world.”

HT envisions a Caliphate that stretches across all Muslim lands, ruled by a single leader (Caliph) implementing Islamic law (Sharia) in all aspects of life—governance, economy, and society.

Rejection of Democracy

Hizb ut-Tahrir firmly rejects democracy, arguing that it is a Western-imposed system incompatible with Islam. In HT’s view, sovereignty belongs to Allah alone, not to the people.

Al-Nabhani argued in his writings:

“Democracy places legislation in the hands of humans, whereas in Islam, legislation comes only from Allah.”

HT considers electoral politics under secular governments to be illegitimate and sees participation in them as a betrayal of Islamic principles.

Opposition to Nationalism and the Nation-State

One of HT’s most distinctive ideological positions is its absolute rejection of nationalism. It views national borders in the Muslim world as artificial divisions imposed by colonial powers to weaken Islamic unity.

Zallum, elaborating on this point, stated:

“The so-called Arab world, the so-called Muslim world—these are colonial constructs. Our loyalty is to Islam, not to nations.”

This anti-nationalist stance has often put HT at odds with various governments that see national identity as crucial to their stability.

Methodology: Non-Violent but Radical

Despite its radical rhetoric, Hizb ut-Tahrir claims to follow a non-violent methodology. The group insists that it seeks to bring about the Caliphate through intellectual and political work, rather than armed struggle.

One of HT’s spokespersons stated:

“We reject terrorism and violence. Our method is one of ideological struggle, exposing the corruption of existing regimes and preparing the Ummah for Islamic rule.”

However, critics argue that HT’s rhetoric can inspire extremist violence by portraying secular governments as illegitimate and Western influence as a form of colonialism.

Hizb ut-Tahrir’s Global Expansion

Since its founding, Hizb ut-Tahrir has spread far beyond the Middle East. Today, it operates in over 40 countries, with strongholds in Central Asia, South Asia, and Europe.

Presence in the Middle East

HT’s attempts to gain traction in the Arab world have been met with repression. Many Middle Eastern governments, particularly in Egypt, Jordan, and Saudi Arabia, have outlawed the group and imprisoned its members.

Despite this, HT continues to have underground networks in many Arab countries, particularly in Syria, where it has attempted to influence Islamist factions.

Strength in Central Asia

HT has a significant presence in Central Asia, particularly in Uzbekistan, Kyrgyzstan, and Kazakhstan. The governments of these countries view HT as a major security threat, accusing it of attempting to radicalize the population and undermine state authority.

The Uzbek government has been particularly aggressive in cracking down on HT, imprisoning thousands of its suspected members.

Growth in South Asia

HT has made notable inroads in Pakistan and Bangladesh, where it has targeted the military and educated elites for recruitment. It has repeatedly called for a military coup in Pakistan to establish an Islamic state.

A prominent HT leader in Pakistan stated:

“The Muslim armies must remove the traitorous rulers and establish the Caliphate, for they hold the power to do so.”

This open call for military intervention has led to multiple government crackdowns on HT activities.

European Presence

HT has also gained a following in Western countries, particularly in the UK, where it has a visible presence in Muslim communities. While it is banned in Germany and Russia, it continues to operate legally in some Western countries under the banner of free speech.

HT’s European branches focus heavily on intellectual debates, organizing lectures and conferences that critique Western democracy and foreign policy.

Legacy and Controversy

Impact on Islamist Movements

Hizb ut-Tahrir has played a significant role in shaping Islamist discourse. While it has never succeeded in establishing a Caliphate, its emphasis on the unity of the Muslim world has influenced many contemporary Islamist movements.

Some jihadist groups, including al-Qaeda and ISIS, have been indirectly influenced by HT’s vision of the Caliphate. However, HT officially rejects these groups’ use of violence, creating a paradox where it shares a similar ideological goal but differs in methodology.

Government Crackdowns and Bans

Many governments view Hizb ut-Tahrir as a threat to stability and have banned it. Countries that have outlawed HT include: Egypt, Pakistan, Russia, Germany, China (particularly in Xinjiang, where HT is accused of inciting separatism)

Despite bans, HT continues to operate clandestinely in many of these regions.

Internal Challenges

HT has faced internal struggles, including leadership disputes and strategic debates over whether to engage with existing political structures or continue its purist approach.

Additionally, the rise of violent extremist groups has made it difficult for HT to maintain its image as a non-violent organization. Many view its ideology as a stepping stone to radicalization.

Hizb ut-Tahrir remains one of the most enigmatic and controversial Islamist movements in the modern era. With a highly disciplined structure and a clear ideological vision, it has managed to survive despite decades of repression.

While it has not achieved its goal of restoring the Caliphate, HT’s impact on Islamic political thought is undeniable. Whether it will ever translate its ideology into tangible political power remains to be seen, but its presence in global Islamist discourse is unlikely to fade anytime soon.

A Detailed Refutation of Hizb ut-Tahrir’s Ideology: Voices from Moderate Islam

Hizb ut-Tahrir (HT) presents itself as an intellectual and political movement dedicated to restoring the Islamic Caliphate. While it claims non-violence, its ideological underpinnings—rejection of democracy, nationalism, and participation in existing political systems—have made it a source of concern for governments and moderate Muslim scholars alike.

Throughout Islamic history, numerous respected scholars and leaders have espoused views that directly contradict HT’s core beliefs. This article presents a comprehensive refutation of HT’s ideology using insights from classical Islamic scholars, modern Muslim intellectuals, and contemporary political figures who argue for a more balanced and pragmatic understanding of Islam.

1. The Misuse of the Caliphate: A Historical and Theological Perspective

HT’s Claim:

Hizb ut-Tahrir asserts that the abolition of the Ottoman Caliphate in 1924 marked the beginning of the Muslim world’s decline. It claims that re-establishing a centralized Caliphate is a divine obligation and the only solution to the problems faced by Muslims today.

“The Ummah has been living in darkness since the destruction of the Caliphate in 1924. Only by re-establishing it will Muslims regain their dignity and rightful leadership in the world.” – Abdul Qadeem Zallum, former HT leader

Refutation: The Caliphate is Not a Religious Pillar

Islamic scholars throughout history have debated the nature and necessity of the Caliphate. While governance in Islam is important, it is not one of the five pillars of Islam (Shahada, Salah, Zakat, Sawm, Hajj), nor is it a core tenet of faith.

1.1 Classical Scholars on the Caliphate

The famous Islamic jurist Imam Al-Ghazali (1058–1111) argued that the unity of Muslims is more about faith and moral values than a political structure:

“The welfare of the people is not dependent on the existence of one ruler or a single Caliphate, but rather on the just administration of affairs, ensuring security, and upholding the principles of Islam.” – Al-Ghazali, Ihya Ulum al-Din

Similarly, Ibn Khaldun (1332–1406), the great historian and sociologist, observed that political leadership in Islam evolved naturally over time and that power should be based on the needs of society rather than rigid historical models:

“The Caliphate as envisioned in early Islam was suitable for that time. Governance is shaped by economic and social conditions, and no single model can be deemed mandatory for all ages.” – Ibn Khaldun, Muqaddimah

1.2 Contemporary Scholars on the Caliphate

Renowned modern Islamic scholar Sheikh Yusuf al-Qaradawi (1926–2022) refuted the idea that a single political entity is necessary for the Muslim world:

“Nowhere in the Qur’an or authentic Sunnah is there a command that Muslims must have only one ruler. Unity in faith and cooperation in good deeds are required, but political unity under one state is neither a necessity nor a divine obligation.” – Yusuf al-Qaradawi

Even within early Islamic history, the concept of the Caliphate evolved and was never universally agreed upon. The Rightly Guided Caliphs (632–661) ruled differently from the later Umayyad and Abbasid Caliphs, demonstrating that governance structures changed according to circumstances.

The insistence on reviving the Caliphate as an obligation ignores both historical realities and Islamic jurisprudence. Justice, security, and good governance—rather than a single political entity—are the true Islamic ideals.

2. Rejection of Democracy and Elections: A False Dichotomy

HT’s Claim:

Hizb ut-Tahrir rejects democracy, arguing that only divine law (Sharia) should govern Muslims and that elections under secular systems are illegitimate.

“Democracy places legislation in the hands of humans, whereas in Islam, legislation comes only from Allah.” – Taqiuddin al-Nabhani, HT founder

Refutation: Islam Encourages Shura (Consultation) and Public Participation

HT’s opposition to democracy stems from a rigid and literalist interpretation of governance. However, Islam itself encourages Shura (consultation), accountability, and public participation, all of which align with democratic principles.

2.1 Qur’anic and Hadith Evidence for Consultation

The Qur’an explicitly commands consultation in governance:

“And those who have responded to [the need for] their ruler with consultation among themselves, and who spend from what We have provided them.” – (Qur’an 42:38)

The Prophet Muhammad (PBUH) practiced consultation in state matters. He sought advice from his companions before major decisions, even when he had divine guidance. If democracy is about accountability and consultation, how can it be un-Islamic?

2.2 Statements from Muslim Scholars Supporting Democratic Principles

Muhammad Abduh (1849–1905), an Egyptian reformer, argued that democracy was in line with Islamic principles of justice and consultation:

“The essence of democracy—justice, accountability, and consultation—is what Islam calls for. The problem is not democracy itself but those who misuse power under any system.”

Similarly, Maulana Wahiduddin Khan (1925–2021), an Indian Islamic scholar, defended democracy by emphasizing that Islam is against dictatorship:

“A government chosen by the people and accountable to them is closer to Islamic values than authoritarian rule. Tyranny is haram, whether in the name of religion or secularism.”

HT’s rejection of democracy is based on a false understanding of Islamic governance. The Qur’an and Sunnah encourage consultation, participation, and accountability, all of which align with democratic principles.

3. Nationalism and the Muslim Identity: A Misplaced Opposition

HT’s Claim:

HT rejects nationalism, claiming that it is a colonial construct that divides the Muslim Ummah.

“The so-called Muslim world—these are colonial constructs. Our loyalty is to Islam, not to nations.” – HT statement

Refutation: Islam Recognizes Diversity and Local Identity

HT’s rejection of nationalism contradicts Islamic teachings that acknowledge diversity and local identities as part of God’s creation.

3.1 Qur’anic and Prophetic Recognition of National Identity

The Qur’an states:

“O mankind, We have created you from a male and a female and made you peoples and tribes so that you may know one another.” – (Qur’an 49:13)

This verse clearly recognizes that different identities exist, and they are not inherently un-Islamic. The Prophet Muhammad (PBUH) himself acknowledged tribal affiliations but condemned racism and oppression.

3.2 Scholars on Nationalism and Islam

Muhammad Iqbal (1877–1938), a philosopher and poet of South Asia, argued that Islam could accommodate nationalism within a broader spiritual framework:

“Love for one’s country does not negate love for Islam. A Muslim can be a patriot without abandoning his religious identity.”

Similarly, Prince Hassan of Jordan, a modern Islamic scholar, stated:

“Islamic unity is a spiritual bond, but political unity is not always practical. A just ruler, whether in a Muslim-majority or non-Muslim state, is preferable to an unjust Caliph.”

HT’s rigid opposition to nationalism ignores Islamic teachings that recognize diversity and local governance. Unity in faith does not require the dissolution of nation-states.

Final Thoughts: The Way Forward

Hizb ut-Tahrir’s ideology is rooted in a selective and rigid interpretation of Islamic history, ignoring centuries of jurisprudential development and political realities. Scholars from classical to modern times have consistently advocated for justice, consultation, and adaptability, rather than an uncompromising, monolithic state.

The real challenge for the Muslim world is not the re-establishment of a Caliphate but the promotion of justice, education, and good governance. As the Qur’an states:

“Indeed, Allah commands justice, good conduct, and giving to relatives and forbids immorality, bad conduct, and oppression.” – (Qur’an 16:90)

A better future for Muslims lies in progress, knowledge, and ethical leadership, not in romanticizing a political model that no longer fits the modern world.

Grace Mubashir is a PhD scholar at Islamic Studies, Jamia Millia Islamia and a freelance journalist based at Delhi

Article was first published on New Age Islam

The post Hizb ut-Tahrir: Radical thoughts influencing global mainstream politics – Part 1 appeared first on SabrangIndia.

The imam, a religious reformer and an activist, was ambushed by two masked men in a pick-up truck while visiting the southern city of Gqeberha on Saturday. While police have yet to establish the motive for the hate crime, political parties and LGBTQ+ organizations say Hendricks was targeted because he started a mosque in Cape Town for gay Muslims and called for members of the LGBTQ+ community to be welcomed into Islam. And was not deterred by the many death threats he had received over several years.

IMSD stands by the dictum: “No God, gods, goddesses, prophets or saints may be invoked to justify the killing and/or terrorising of fellow human beings”.

A statement issued by the departed Imam’s colleagues at the Center for Contemporary Islam at University of Cape Town said: “His theology was a liberation theology: God is a God of radical love and justice for all human beings. The safe space created by his work brought relief beyond the community of queer Muslims, extending to refugees, people who were homeless, those marginalised without community and belonging, for whom he provided a space of inclusion”.

Deploring the fact some Muslims were condoning the imam’s assassination on social media, the statement bemoaned that “the compounded horror of such violence and brutality has brought into sharp focus the intense homophobia permeating the Muslim community”.

IMSD notes with concern that this intense homophobia permeating the Muslim community is sadly as true of South Africa as it is of the global Muslim community, India included.

We recall our statement issued in March 2023 strongly condemning the concerted effort by the Muslim rightwing in Kerala — including leaders of the Jamaat-e-Islami, the Indian Union Muslim League (IUML), and some Muslim-run websites — to ridicule, vilify, denigrate and demonise Muslims who are part of the LGBTQIA+ community.

IMSD stands in solidarity with the South African colleagues of the departed Imam and fully supports the call by the US-based Muslims for Progressive Values (MPV) on all Muslims worldwide, “to build a culture of tolerance and curiosity for various interpretations of Islam”.

We call on Indian Muslims in particular, who as a community have been relentless targets of hate politics and hate crimes in today’s ‘new India’, to deplore and eschew any hatred or violence in Islam’s name. Signatories:

1. Anand Patwardhan, IMSD, Documentary Film-maker, Mumbai
2. Arshad Alam, IMSD Co-convenor, Columnist, Delhi
3. Askari Zaidi, IMSD, Senior Journalist, Delhi
4. Feroze Mithiborwala, IMSD Co-Convener, Mumbai
5. Ghulam Rasool Dehlvi, an Alim and Fazil (a classical Islamic scholar), having graduated from a leading Islamic seminary of India, Jamia Amjadia Rizvia (Mau, U.P.)
6. Hasan Ibrahim Pasha, IMSD, Writer, Allahabad
7. Javed Anand, IMSD Co-convener, CJP, Mumbai
8. Kasim Sait, Businessman, Social Activist, Chennai
9. Lara Jesani, Advocate, PUCL, Mumbai
10. Madhu Prasad, IMSD, Social Activist, Delhi
11. Mohammad Imran, PIO, USA
12. Muniza Khan, Citizens for Justice and Peace, Varanasi
13. Qaisar Sultana, Home Maker, Allahabad
14. Qutub Kidwai, IMSD, Islamic Feminist/ Peace Activist, Secretary General AMAN International, Mumbai
15. (Prof) Mohammad Sajjad, Historian, AMU, Aligarh
16. (Dr) Shahnawaz Alam, UP
17. Shamsul Islam, Author, Activist, Delhi
18. Sultan Shahin, Editor-in Chief, New Age Islam, Delhi
19. Teesta Setalvad, IMSD, Secretary CJP, Mumbai
20. Zakia Soman, Co-Convener, Bhartiya Muslim Mahila Andolan
21. Zeenat Shaukat Ali, Islamic Scholar, Director general, Wisdom Foundation, IMSD, Mumbai

Related:

Progressive Muslims condemn the assassination in South Africa of the world’s first gay Imam

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I. Brief history of rape law

Justice Rajiv Shakdher begins his judgment with a historical overview of rape law, emphasising the evolution of the concept of marital rape. He notes that the origins of the Marital Rape Exception (MRE) can be traced back to the doctrine of coverture, which held that a married woman’s legal rights were subsumed by her husband’s. This historical context is crucial for understanding the archaic nature of the MRE, which Justice Shakdher describes as being rooted in a time when women were treated as mere property of their husbands.

II. Separation of powers and judicial restraint

Justice Shakdher addresses the argument that the judiciary should not interfere with legislative decisions, particularly in matters of criminal law. The counsel for one of the intervenors—Men’s Welfare Trust— had argued that if the court were to exercise the powers under Article 226, and strike down MRE, it would have carried out a legislative act thus blurring the Doctrine of Separation of Powers.

Justice Shakdher first establishes via rich case law that in India, the separation of powers is not as rigid as it is in other jurisdictions. Having established it as such, he essentially states that the doctrine does not preclude the judiciary from examining the constitutionality of laws to legislate but to ensure that laws are in compliance with the Constitution (Para 123).

His reasoning behind the court’s power to address the constitutionality of the MRE—against the argument that the Court cannot legislate—is simple and to the point. He states that Article 13 empowers courts to declare void any laws that contravene Part III (Fundamental Rights). Therefore, according to Justice Shakdher, the court’s power includes, as in this case, the authority to deem a law or provision unconstitutional. He states as follows: “The submission that the issues involved concern a policy decision which, in turn, requires wide ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman’s fundamental rights conferred under the Constitution.” (Para 125)

Justice Shakdher rejects the notion that judicial restraint should prevent the court from examining the constitutionality of the MRE. To let it be handled by legislature which actually has the means to conduct consultations with a diverse set of stakeholders, it is not an economic/policy issue. According to him, it is a legal issue with alleged violations of fundamental rights and “Side-stepping such issues would be akin to the court seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide.” (Para 127)

III. Ambit of section 375 of the IPC-Article 14 Test

Justice Shakdher analyses Section 375 of the Indian Penal Code (IPC), which defines rape. He emphasises that rape’s unlawfulness hinges on whether sexual acts were consensual. Section 375’s Clauses (a)-(d) ignore marital status. They apply to all forced sexual acts, except when the offender is a husband. Similarly, married women cannot file criminal charges against their husbands under these clauses. (Para 135.2)

Justice Shakdher identifies consent as central to Section 375. He then examines the Marital Rape Exception (MRE), which treats married and unmarried individuals differently. He concludes MRE violates Article 14 of the Constitution. Why? He applies the Article 14 test: a law’s “intelligible differentia” (clear distinction) must rationally connect to its object. MRE’s marital distinction, he argues, has no rational nexus to Section 375’s goal of criminalizing non-consensual acts. (Para 137.1)

Instead of treating MRE and Section 375 as separate, the judgement treats MRE against Section 375’s core objective. He finds MRE fails this test, as it exempts husbands from liability without justification.

Justice Shakdher’s reasoning behind striking down the Marital Rape Exception (MRE) is compelling not just for its legal soundness but also for the sheer weight of real-life examples he brings forth. His judgement does not merely counter Justice Hari Shankar’s argument that marriage creates a sexual expectation—it systematically dismantles the sexual expectation argument by highlighting multiple instances where a married woman is denied agency over her body, even in situations where fundamental rights to dignity and health should prevail.

One of the most striking aspects of his judgment is his reference to instances where a married woman’s lack of consent is disregarded: when her husband has a communicable disease, when she is unwell, or when the husband is involved in gang rape with co-accused. These examples puncture holes in the argument that marriage inherently implies perpetual consent. As he illustrates:

• Forced sex outside marriage is recognised as “real rape,” yet the same act within marriage is deemed something else.
• A chaste woman or a young girl is more likely to be considered a victim, but a married woman is not.
• A prior sexual relationship is regarded as a reasonable defense on the assumption of consent, yet a married woman’s consent is not even put to test.
• A sex worker has the legal right to refuse sex, but a married woman does not.
• In cases of gang rape where the husband is involved, the co-accused faces the full force of the law, while the husband is exempt merely due to his marital status.
• A married woman has no legal protection even when her husband has a communicable disease or when she herself is unwell. (Para 137.1)

However, Justice Shakdher’s judgement does not stop with disproving the idea of absolute and perpetual sexual expectation in marriage. It goes a step further, challenging the very notion that the State has a legitimate interest in protecting a marriage that functions as a site of tyranny. His judgment is uncompromising in its stance that when husbands are raping their wives, the law cannot seek to preserve such a structure. In his words:

“When marriage is tyranny, the State cannot have a plausible legitimate interest in saving it.” (Para 137.1)

This statement alone renders MRE indefensible under Article 14. The classification between married and unmarried women is not just arbitrary but actively unjust. He applies the test of reasonableness from Slattery v. Naylor (1888) and Kruse v. Johnson (1898), concluding that MRE is manifestly unjust and oppressive. He states:

“If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for lawmakers could never have intended to make such a law.” (Para 138)

Justice Shakdher critiques the over-reliance on the test of classification, arguing that courts must go beyond rigid categorisation and examine how a law actually operates on the ground. The real effect and impact on those subjected to it must take precedence over remote or indirect consequences, his judgement states, relying on Anuj Garg & Ors. v. Hotel Association of India & Ors.^[2] The Doctrine of Classification must ultimately serve the core principle of equality, not override it. (Para 140)

Applying this to MRE, he highlights its immediate and glaring impact: an unmarried rape survivor can seek protection under various IPC and CrPC provisions, but a married woman is denied the same safeguards. She cannot benefit from identity protection (Section 228A IPC), medical examination provisions (Sections 53A, 164A CrPC), gender-sensitive trial procedures (Sections 26, 154, 161, 309 CrPC), in-camera trials (Section 327 CrPC), or mandatory medical aid (Section 357C CrPC).

He states as follows while declaring the MRE to be violative of Article 14 of the Constitution:

“The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution.” (Para 141.1)

IV. On other arguments

Justice Shakdher dismantles the argument that MRE is justified because other IPC provisions are also relationship-based. He clarifies that while some laws exempt spouses from prosecution (e.g., Sections 136, 212, 216, 216A IPC), these apply only to harboring offenders, not committing offenses against a spouse. MRE, however, shields the husband precisely because he is the perpetrator, making the comparison fundamentally flawed.

He also rejects the claim that married women have alternative legal remedies under IPC and other statutes. Section 498A (cruelty), Section 304B (dowry death), and Section 306 (abetment of suicide) do not address rape—they deal with specific forms of abuse. Even the Domestic Violence Act (D.V. Act), while recognizing sexual abuse, does not criminalize marital rape. Instead, it provides civil remedies like protection orders and financial relief but denies the survivor the ability to prosecute her rapist husband under Section 376(1) IPC.

The result? The judgement points out to a glaring legal loophole where a wife can report every other crime committed by her husband except rape. This exposes the hollowness of the claim that existing laws protect married women against sexual violence.

V. MRE violates Article 21 of the Constitution

Justice Shakdher asserts that the MRE violates Article 21 of the Constitution, which guarantees the right to life and personal liberty. He argues that the MRE undermines a woman’s right to bodily integrity and autonomy by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

Justice Shakdher states, “The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.”  (Para 163)

Therefore, denying a married woman the right to legally recognize rape by her husband strikes at the core of her right to life and liberty under Article 21.

VI. MRE Violates Articles 15 and 19(1)(a) of the Constitution

Justice Shakdher also examines the MRE’s impact on Articles 15 and 19(1)(a) of the Constitution, which guarantee protection from discrimination and the right to freedom of expression, respectively. He argues that the MRE perpetuates gender discrimination by treating married women differently from unmarried women.

Justice Shakdher states, “The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband.”  (Para 166.1)

VII. Presumption of constitutionality of pre-constitutional statutes

The judgment addresses the presumption of constitutionality concerning pre-constitutional laws like the IPC, asserting that such laws are not immune from constitutional scrutiny. While Article 372 saves pre-constitutional laws, it does not shield them from being tested against fundamental rights under Articles 14, 15, 19(1) (a) and 21.

The judgment acknowledges the argument from Navtej Singh Johar vs Union of India and Joseph Shine that pre-constitutional statutes do not enjoy an inherent presumption of constitutionality.[3]

Further, the judgement emphasizes the evolving nature of constitutional interpretation. Relying on Anuj Garg, it holds that laws, even if constitutional at inception, can become unconstitutional due to societal changes. Thus, outdated legal provisions must be reassessed to align with contemporary constitutional values. (Para 172.1)

VIII. Foreign decisions, international covenants, and Indian parliamentary reports

The judgment pushes back against objections to relying on foreign decisions and international covenants, pointing out that legal systems worldwide have already moved past the idea that marriage grants immunity from rape. Cases like CR v. UK (ECHR) and People v. Liberta (New York Court of Appeals) make it clear that the marital rape exemption has no place in modern law. Courts in Nepal and the Philippines have also ruled that forced sex in marriage is still rape, reinforcing that consent does not become irrelevant after marriage.

It recognises the importance of international conventions like CEDAW and the Beijing Declaration emphasize gender equality and protection against sexual violence, making it clear that MRE goes against India’s global commitments. Courts in India have previously used international law to interpret domestic statutes, and the judgment follows that precedent.

As for parliamentary reports, multiple committees—including the Justice Verma Committee—have called for scrapping MRE. The fact that the legislature hasn’t acted doesn’t mean courts can’t step in. Navtej Singh Johar made it clear that legislative inaction is a “neutral fact” and doesn’t block judicial review.  The judgement recognises this and follows the same principle.

IX. On miscellaneous issues

Conjugal expectations and marital rights

The judgment critiques the notion of “conjugal expectation,” clarifying that while legitimate during a harmonious marriage, it cannot equate to an unfettered right to non-consensual sex. It references Section 9 of the Hindu Marriage Act (HMA) and Order XXI Rule 32 of the Civil Procedure Code (CPC), noting that even restitution decrees for conjugal rights cannot mandate consummation. The law must respect marital consent, not impose obligations. (Para 146)

Marriage as an institution vs. individual rights

The judgment rejects the argument that excluding marital rape from Section 375 IPC protects the institution of marriage. It emphasizes that marriage is a union of individuals rooted in mutuality, respect, and autonomy. When these principles are violated, the institution collapses. The state’s role is limited to recognizing/dissolving marriages via laws like the HMA, Domestic Violence Act (D.V. Act), and IPC provisions (Sections 375–376B), not shielding perpetrators of sexual violence (Para 148.3).

Labeling marital rape as “rape”

The judgment argues that sexual assault by a husband falling under Section 375 must be labeled as rape to reflect societal disapproval. It critiques societal stigma against victims, not perpetrators, and dismisses the distinction between marital rape and other IPC offenses (e.g., hurt under Sections 319–323, cruelty under Section 498A). Labeling is critical for legal accountability. (Para 149)

False cases and empirical evidence

The judgment refutes fears of false cases, citing National Family Health Survey (NFHS-4) 2015–16 data showing 99% of sexual assaults go unreported. It dismisses the argument as exaggerated, noting courts handle false complaints under IPC provisions like Section 498A (Para 151). The state’s interest in protecting women from abuse outweighs unfounded concerns about misuse.

Here too, we can see the contrast in Justice Rajiv Shakdher’s judgement and Justice Hari Shankar’s judgement in terms of reliance on data. As mentioned in our analysis of Justice Harishankar’s judgement, his analysis lacks empirical data or backing of scholarly work when he asserts that rape by a stranger and non-consensual sexual activity by a husband are not equal in the terms of the psychological trauma they inflict on the woman.

Invasion of the private sphere

The judgment rejects claims that prosecuting marital rape invades private marital space. It distinguishes rape from other marital crimes (e.g., cruelty, hurt) by emphasizing constitutional rights. Citing Joseph Shine vs Union of India (2018), it holds that privacy cannot shield rights violations, and marital intimacy is not exempt from constitutional scrutiny (Para 152).[4] The judgment dismisses arguments about evidentiary difficulties, equating marital rape to other private-space crimes. 

Conclusion

Justice Rajiv Shakdher’s judgment in RIT Foundation is a masterclass in constitutional adjudication, dismantling the marital rape exception (MRE) not merely as a legal anomaly but as a moral affront to India’s republican ethos. By anchoring his analysis in the lived realities of women—where marriage becomes a license for tyranny—he transcends abstract doctrinal debates to expose the MRE’s core flaw: its reduction of women to chattel, stripped of autonomy, dignity, and bodily integrity.

Justice Shakdher’s reasoning is a rebuke to judicial timidity. He rejects the facile argument that courts must defer to legislative “policy choices,” reminding us that the judiciary’s duty is to safeguard fundamental rights, not shield regressive laws from scrutiny. His invocation of Article 13—declaring unconstitutional any law that violates Part III—is a clarion call for courts to actively engage with societal evolution, rather than entombing themselves in the formalism of “separation of powers.”

The judgment’s brilliance lies in its refusal to treat marriage as a sacred cow. It dissects the MRE’s “conjugal expectations” myth, revealing it as a fig leaf for systemic misogyny. By contrasting the legal protections afforded to unmarried rape survivors with the abject denial of justice for married women, it lays bare the MRE’s arbitrary cruelty.

Yet, Justice Shakdher’s verdict is more than a legal victory; it is a philosophical manifesto. His assertion that “when marriage is tyranny, the State cannot have a legitimate interest in saving it” challenges the very premise of a legal regime that prioritizes familial “stability” over individual rights. This is not merely about criminalizing marital rape—it is about redefining marriage itself as a partnership of equals, not a hierarchy of domination.

In contrast, Justice Hari Shankar’s deference to legislative inaction and his elevation of marriage as an institution above constitutional rights represent a jurisprudential throwback, clinging to a vision of the law as a tool for social control rather than liberation. The split verdict, therefore, is not merely a clash of legal opinions but a microcosm of India’s broader struggle between tradition and transformation.

Justice Shakdher’s judgment is a testament to the Constitution’s living spirit—a reminder that rights are not mere parchment promises but living guarantees that demand constant vigilance. By striking down the MRE, he does not merely correct a legal wrong; he reaffirms the judiciary’s role as the Constitution’s moral compass, ensuring a future where no woman’s body is subjected to patriarchal entitlement. In doing so, he invites us to reimagine justice not as a compromise between competing interests, but as an uncompromising commitment to human dignity.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

^[2]  (2008) 3 SCC 1

[3] (2018) 10 SCC 1

[4] (2019) 3 SCC 39

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A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

The post When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative appeared first on SabrangIndia.

While Justice Rajiv Shakdher struck down the MRE, Justice C. Hari Shankar dismissed the petitions—upholding the constitutional validity of the MRE. This article will focus on Justice C. Hari Shankar’s opinion that upheld the constitutionality of the provisions, essentially denying any woman recourse under law prosecuting rape within the institution of marriage.

Facts

• The RIT Foundation, along with the All-India Democratic Women’s Association (AIDWA) and two other individuals, filed a petition challenging the marital rape exception (MRE) under Section 375, Exception 2 of the Indian Penal Code (IPC) 1860. The petition argued that the MRE should be struck down as it violated the constitutional rights of women and perpetuated gendered violence and discrimination.

Provisions involved

The following provisions were challenged:

• Section 375, Exception 2 of the IPC: This exception stated that sexual intercourse by a man with his own wife, who is not under 18 years of age, was not considered rape.
• Section 376B of the IPC: This section dealt with the punishment (2 years) for rape committed by a husband who was separated from his wife.
• Section 198B of the Code of Criminal Procedure (CrPC):  This sections states that no court shall take cognisance of an offence punishable under section 376B of the Indian Penal Code (IPC) where the persons are in a marital relationship, except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been filed or made by the wife against the husband.

These abovementioned provisions remain in the same form in the Bharatiya Nyaya Sanhita, 2023 with different section numbers via Sections 63 and 67 of the BNS and Section 221 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Arguments advanced against MRE:

• • The MRE violated the constitutional goals of autonomy, dignity, and gender equality enshrined in Articles 15, 19(1) (a), and 21 of the Constitution.
  • The MRE treats women as the property of their husbands after marriage, denying them sexual autonomy, bodily integrity, and human dignity as guaranteed by Article 21.
  • The MRE violated the reasonable classification test of Article 14 as it created a distinction between married and unmarried women, denying equal rights to both.
  • The MRE should be struck down, and the punishment under Section 376B should also be invalidated as it discriminated between offences committed by separated husbands, actual husbands, and strangers.

Arguments for MRE’s constitutionality:

• • The crux of these arguments was twofold—court’s lack of power to read down the MRE thus creating a new offence and the fact that legislature had made a conscious decision to not label non-consensual sexual act between husband and wife as rape to protect the institution of marriage, by extension, families and progeny thus there is a legitimate object that the state is seeking to achieve via the MRE.

Justice C. Hari Shankar began his judgment by outlining the context and the specific challenge before the court. The petitioners argued that Exception 2 to Section 375, which states that sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape, is unconstitutional. They contended that this exception violates Articles 14, 19(1)(a), and 21 of the Constitution, which guarantee equality before the law, freedom of speech and expression, and protection of life and personal liberty, respectively. The petitioners emphasized the importance of sexual autonomy and consent, arguing that the exception undermines these principles by immunizing husbands from prosecution for non-consensual sexual acts within marriage.

On original objective and the continuing legislative intent

Justice C. Hari Shankar addressed the original objective and the continuing legislative intent behind the Marital Rape Exception (MRE) in his judgment. He emphasised that the original objective of the MRE, as conceived in the 1860 IPC, was not based on the outdated “Hale dictum,” which suggested that marriage implied a wife’s consent to sexual intercourse with her husband. Instead, the MRE was rooted in the unique nature of the marital relationship and the need to balance individual rights with the preservation of the institution of marriage.

He stated:

“There is nothing to indicate that the ‘marital exception to rape,’ contained in the Exception to Section 375 of the IPC, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the ‘Hale dictum,’ which refers to the following 1736 articulation, by Sir Matthew Hale: ‘The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.’ Repeated allusion was made, by learned Counsel for the petitioners, to the Hale dictum. There can be no manner of doubt that this dictum is anachronistic in the extreme, and cannot sustain constitutional, or even legal, scrutiny, given the evolution of thought with the passage of time since the day it was rendered. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d’être either of Section 359 of the draft Penal Code or Section 375 of the IPC.” [Para 13]

Justice C. Hari Shankar further explained that the continuing legislative intent behind retaining the MRE is to preserve the institution of marriage. He highlighted that the legislature, in its wisdom, has chosen to treat non-consensual sexual acts within marriage differently from those outside of marriage. He argued that this distinction is based on an intelligible differentia that has a rational nexus to the object of preserving the marital institution.

In essence, Justice C. Hari Shankar maintained that the continuing legislative intent behind the MRE is to protect the institution of marriage by distinguishing between non-consensual sexual acts within marriage and those outside of it. He emphasized that this distinction is not arbitrary but is based on a rational assessment of the unique dynamics of the marital relationship and the broader societal interests at stake.

On rational nexus and intelligible differentia

Justice C. Hari Shankar further analyses the concept of “intelligible differentia” and “rational nexus” in the context of Article 14 of the Constitution.

His interpretation rests on the foundational premise that the marital relationship is intrinsically distinct from all other forms of relationships, particularly in that it carries an inexorable incident of a legitimate expectation of sexual relations.

He articulates this position as follows:

“The primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, of a legitimate expectation of sex.”

This formulation forms the central pillar of his justification for treating non-consensual sexual acts within marriage differently from those outside of it. The judgment thus constructs an argument wherein marriage, as a legal institution, grants a presumption of consensual intimacy, differentiating it from other relationships where consent must be independently established.

He states:

“The legislature is free, therefore, even while defining offences, to recognise ‘degrees of evil.’ A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also, therefore, be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Court may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish.” [Para 144]

Internal inconsistencies within the IPC framework

However, this reasoning, while maintaining internal consistency within the judge’s interpretative framework, encounters contradictions within the broader legal architecture of the IPC—particularly when juxtaposed with Section 376B, which criminalizes non-consensual intercourse between a husband and wife during separation.

Section 376B, which prescribes a lesser punishment (up to two years of imprisonment), nonetheless acknowledges that marital status alone does not create an absolute or irrevocable expectation of sexual relations. This provision, therefore, implicitly recognizes a wife’s autonomy and the necessity of consent, at least in specific contexts. The logical inconsistency emerges in two key aspects:

1. Recognition of autonomy in judicial and non-judicial separations

1. • Section 376B (punishment for rape by a husband during separation) does not require a court-ordered decree of separation for its application, meaning that a wife living separately from her husband—without a state-recognized order—still retains legal protection against non-consensual intercourse involving her own husband.
   • This directly contradicts the fundamental assumption of the MRE, which presumes that marriage inherently entails continuous consent to sexual relations. If the institution of marriage is so distinct and special, then why does the law acknowledge that consent is required during separation, even without formal judicial recognition? It is to ensure that all institutions are within the bounds of the Constitution and the value system it espouses. To this extent, the Criminal Law Amendment Act, 1983 added the current 376B (it was added as 376A but was later renumbered to 376B in 2013 after the Criminal Law Amendment, 2013).

2. The status of underage marital rape under IPC

1. • The inconsistency is further compounded by the fact that the IPC (via the Independent Thought vs Union of India judgement) criminalizes non-consensual intercourse with a wife below the age of 18, thereby recognizing the primacy of consent in certain marital contexts.
   • If the marital bond inherently carries an expectation of sexual relations, as the judgment asserts, then the legal system’s refusal to extend this principle to child marriages undermines the assumption of an absolute and uninterrupted sexual expectation within marriage. However, it has been extended to bring it in consonance with the constitutional principles in Independent Thought vs. Union of India.[2]

The judgment by Justice C. Hari Shankar relies on the intelligible differentia test to uphold the MRE, but the incoherence in its application becomes evident when viewed through the lens of Section 376B and related provisions. If marriage is a uniquely protected institution, then its sanctity should logically override even non-judicial separations—yet it does not. This suggests that when the law is compelled to acknowledge a wife’s individual autonomy, it does so in ways that directly conflict with the underlying justification for the MRE.

One could argue that a clear distinction exists in the punishments, as spousal rape during separation carries a lighter sentence (two years) compared to the harsher penalties under Section 375. However, this distinction collapses under scrutiny because:

• The recognition of consent during separation (including non-judicial separation) means that the “legitimate expectation of sex” argument is not absolute.
• The law, therefore, implicitly concedes that the marital institution does not override a wife’s right to autonomy in every instance.
• If the expectation of sexual relations within marriage were as absolute as the judgment suggests, then non-consensual intercourse during a non-court-ordered separation should not have been an offense at all.

The IPC’s contradictions — recognizing marital consent in separations (Section 376B) and criminalising underage marital rape — dismantle the “intelligible differentia” justifying the marital rape exception (MRE). By acknowledging that consent matters even within marriage, the law inadvertently concedes that marital status alone cannot negate autonomy. This fractures the MRE’s foundational logic: if a separated or underage wife retains constitutional rights to bodily integrity (Articles 14, 21), why does cohabitation erase them? The disparity in punishments (2 years vs. 10 for non-marital rape) further portrays a patriarchal hierarchy, implying a husband’s “claim” outweighs a wife’s dignity — a stance antithetical to Article 15’s prohibition of gender discrimination and to Constitutional Morality as espoused in Navtej Singh Johar vs Union of India.[3]

On Article 19 and 21

Justice C. Hari Shankar also addresses the argument that the exception violates Article 19(1)(a) by restricting a married woman’s right to sexual self-expression. He rejects this contention, stating that the exception does not compromise a woman’s right to consent or refuse consent to sexual relations. Instead, it merely recognises the complex interplay of rights and obligations within a marital relationship. Similarly, he dismisses the claim that the exception infringes upon Article 21, asserting that there is no fundamental right under the Constitution for a woman to prosecute her husband for rape in the context of marriage. It is here that Justice C. Hari Shankar makes deeply problematic observations that highlight and symbolise the underrepresentation of women and their voices, both in the society and in the judiciary that has contributed to emergence views such as follows.

He states as follows:

“If one were to apply, practically, what has been said by Mr. Rao of the crime of “rape”, the entire raison d’etre of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts, on the woman, a “deep sense of some deathless shame”, and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects, in the backdrop of sexual assault by a stranger, vis-à-vis nonconsensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger, and suffers sexual assault – even if it were to fall short of actual rape – sustains much more physical, emotional and psychological trauma than a wife who has, on one, or even more than one, occasion, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma, cannot reasonably be regarded as having the same effect, when committed by one’s spouse, especially in the case of a subsisting and surviving marriage. The gross effects, on the physical and emotional psyche of a woman who is forced into non-consensual sex, against her will, by a stranger, cannot be said to visit a wife placed in the same situation vis-à-vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach, to the latter situation, the appellation of ‘rape’, which would apply in the former, the distinction is founded on an intelligible differentia, and does not call for judicial censure.” [Para 184]

Essentially, Justice C. Hari Shankar says that rape by a stranger is more psychologically damaging than rape by a husband of his wife.

For starters, this line of reasoning differentiates the intensity of suffering on the basis of the identity of the victim’s vis-a-vis her relation to the accused depending on whether the accused is the victim’s husband or a stranger. This exercise was unnecessary, if not deeply flawed and regressive.

Moreover, the same Section 376 which punishes rape has a stricter punishment for aggravated rape—which punishes rape by people in authority or relatives. Therefore, the law deems rape by people who are in positions of authority/trust more serious than other cases. This distinction should have prompted Justice C. Hari Shankar to delve into the issue with much more sensitivity to the suffering of a victim which it failed to do.

This is not to say that the relation between people in authority and the victims is same as marital relationship. The reason for quoting this example is to show that trauma cannot be said to be less or limited when a husband commits rape when compared to a when a stranger commits the offence.

Secondly, a simple search would have given Justice Hari Shanker studies and scholarly research that discussed how traumatic it is for women to be raped by their own husbands. From Diana Russell’s pioneering work on Rape in Marriage in the 1980s to recent studies on marital rape that reveal its devastating physical, reproductive, sexual, and psychological impact on women well into old age, there is well-established scholarship on the effects of marital rape. Given this, Justice C. Hari Shankar’s casual categorization of these traumas into different tiers is deeply concerning if not problematic (Bhat and Ullman, 2014;  Band-Winterstein T. and Avieli, 2022)[4][5]

On creation of a new offence

Justice C. Hari Shankar further considers the potential consequences of striking down the exception. He notes that doing so would create a new offence of “marital rape” and would necessitate a re-evaluation of the punishments prescribed under Section 376 of the IPC. He also highlights the practical difficulties that would arise in proving consent in cases of marital rape, given the private nature of the marital bedroom. The judge argues that these considerations weigh in favour of retaining the exception, as the legislature has the authority to make policy decisions regarding criminal law.

He maintained that the MRE is an integral part of Section 375 of the Indian Penal Code (IPC) and that removing it would fundamentally alter the scope of the offense of rape. He argued that the MRE is not merely an exception but a critical component of the legal framework that defines the offense of rape.

He stated:

“Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375, read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife… The specification of the identity of the man, and his relationship vis-à-vis the woman, which presently finds place in the impugned Exception might, therefore, just as well have been part of the main provision.” [Para 203]

However, MRE itself is what makes the offense of rape perpetrator-specific, and removing it would merely restore the general applicability of the offence to all individuals, regardless of their marital status. This view is supported by the Supreme Court’s decision in Independent Thought vs Union of India. In this case, the same provision was dealt with. The Marital Rape Exception, before the Independent Thought judgement, applied to non-consensual sexual acts with wife who is 15 years and above. Since it contrasted the Protection of Children from Sexual Offences Act, 2012 and the overall Constitution, the provision was read down to have it applied to only acts with a wife who is 18 and above thus protecting those women who are less than 18 years of age.

This is what the court said in Independent Thought addressing the concerns over it creating a new offence:

 One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 Indian Penal Code, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 Indian Penal Code as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 Indian Penal Code to bring it in consonance with the Constitution and POCSO. 

The judgement by Justice C. Hari Shankar does not deal with this prima facie similarity between the reasoning of Independent Thought and the reasoning of petitioners as to why reading down MRE does not create a new offence. He states as follows:

But, assert learned Counsel for the petitioners, by striking down the impugned Exception, this Court would not be creating an offence. They rely, for this purpose, on Independent Thought , in which it was held that the Supreme Court was not creating an offence by reading down the impugned Exception to apply to women below the age of 18. The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court in Independent Thought. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?

We do not see any engagement with the proposition advanced by the petitioners or with the reasoning in Independent Thought. Striking down the marital exception would not create a new offence but would merely extend the application of Section 375 to all individuals, irrespective of marital status. Justice C. Hari Shankar’s concern—that such a move would turn previously non-offenders into offenders and that criminalization is the legislature’s prerogative—remains unreasoned when examined in light of the approach taken in Independent Thought.

Conclusion

Justice C. Hari Shankar’s judgement is a mix of genuine judicial restraint and a deeply flawed reasoning that puts women and their autonomy on the back burner, for the purpose of patriarchal notions of desire in the garb of sanctity of marriage. His reasoning after a point goes from flawed to problematic when he states the following: “Any assumption that a wife, who is forced to have sex with her husband on a particular occasion when she does not want to, feels the same degree of outrage as a woman raped by a stranger, in my view, is not only unjustified, but is ex facie unrealistic.” [Para 130]

While he is entitled to present his judicial opinion, he does not provide any reasoning for differentiating the trauma of marital rape from that of rape by a stranger. We do not know if he relied on any survey, or on what basis he came to his conclusion. The assertion lacks empirical evidence or scholarly backing and instead relies solely on personal assumptions, which are disconnected from established research on marital rape trauma.

Justice C. Hari Shankar’s wisdom in exercising judicial restraint is robust, tenable and sound when it relates to the argument that such change must come from the legislature. While it might not be entirely agreeable, there is a level of doctrinal firmness to it.

However, his views on marriage, expectations of sex and autonomy of women struggle to find their ground in the concepts of constitutional morality, ethical logic but flow with the flaws of regressive outlook on what a marriage is. These flaws stem not only from an inadequate understanding of how the law attributes sanctity to marriage but also from a superficial and reductive view of the emotional and psychological trauma endured by married women when their trust is violated by their own husbands through marital rape. In this sense, the flaws not only are legal, but also moral.

The novel contribution of this judgement is not the exercise of judicial restraint but an expression of outdated perception of marriage—one that subordinates constitutional morality to patriarchal tradition.

In the next part, the judgement of Justice Rajiv Shakdher declaring the MRE to be unconstitutional and his reasoning in answering some pertinent questions raised by Justice C. Hari Shankar will be discussed.

(The author is part of the legal research team of the organisation)

[1] 2022 SCC OnLine Del 1404

[2] [2017] 10 SCC 800

[3] (2018) 10 SCC 1

[4] Bhat, M. and Ullman, S.E., 2014. Examining marital violence in India: Review and recommendations for future research and practice. Trauma, Violence, & Abuse, 15(1), pp.57-74.

[5] Band-Winterstein, T. and Avieli, H., 2022. The lived experience of older women who are sexually abused in the context of lifelong IPV. Violence against women, 28(2), pp.443-464.

Also Read:

When marriage is tyranny: Justice Shakdher’s judgment reads down the marital rape exception as a constitutional imperative

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A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

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According to Jamui police, the violence unfolded at around 4.30 pm when a group of approximately 30 people, led by members of the Akhil Bharatiya Vidyarthi Parishad (ABVP) and Hindu Swabhimaan Sangathan, were returning from a Hanuman temple in a procession. Despite a contingent of six police personnel escorting the gathering, tensions escalated when the participants allegedly began shouting slogans near a local mosque. Soon after, alleged stone-pelting ensued, triggering a full-blown clash between groups from the Hindu and Muslim communities.

Several vehicles, including motorcycles and cars, were damaged in the melee. Among those injured were individuals identified as Nitish Kumar Sao, Khusbu Pandey, Pintu Kumar, Madhavlal Kashyap, and Suraj Barnwal. In response, the district administration imposed strict measures to contain further violence.

State response and internet suspension

Given the seemingly volatile nature of the situation, the Bihar government imposed a 48-hour internet suspension in Jamui district as a preventive measure. District Magistrate Abhilasha Sharma justified the decision, citing concerns that social media platforms could be used to spread inflammatory content, incite violence, and further disrupt communal harmony. The restriction, enforced under Section 5 of the Indian Telegraph Act, 1885, limits access to popular platforms such as Facebook, Twitter, WhatsApp, YouTube, and Telegram.

Munger range Deputy Inspector General (DIG) Rakesh Kumar defended the internet ban, stating, “Various social media platforms and so-called news portals have been spreading rumours, exacerbating the tension. We took this decision to prevent further disturbances.” The state’s approach highlights an ongoing trend of digital blackouts being used as a tool for crisis management, though it raises concerns about suppression of information and freedom of speech.

Police action and political undertones

In the aftermath of the violence, law enforcement agencies registered two separate First Information Reports (FIRs) under sections of the Bharatiya Nyaya Sanhita (BNS) related to rioting, inciting violence, and destruction of public property. One FIR, based on a complaint from local residents, named 41 individuals, eight of whom have been arrested. The second FIR was lodged against unidentified persons.

Superintendent of Police (SP) Madan Kumar Anand assured that additional security forces had been deployed in the affected areas, with senior officers closely monitoring the situation. However, the broader political climate in Bihar adds another layer to the incident. With the state assembly elections scheduled for October, communal clashes such as this have the potential to be politicised.

It is notable that the groups leading the religious procession – ABVP and Hindu Swabhimaan Sangathan – are affiliated with right-wing organisations. The decision to chant slogans near a mosque, as reported by the district magistrate, suggests deliberate provocation, which aligns with broader patterns of polarisation observed in election years. Such incidents often serve as flashpoints for communal rhetoric, aiding political forces seeking to consolidate voter bases along religious lines.

The larger implications of rising communal tensions

Bihar has witnessed an increase in communal incidents in recent years, with religious processions frequently turning into sites of confrontation. The Jamui incident fits within a larger trend of heightened sectarian tensions across India, where public religious expressions, often involving processions and chanting, are strategically used to provoke responses from opposing communities.

Moreover, the state’s decision to suspend internet services, which the authorities might deem the same to be effective in curbing immediate escalation, raises concerns about the government’s approach to crisis management. Such measures, instead of addressing the root causes of communal discord, serve as a temporary fix while leaving underlying grievances unaddressed. This trend of using blanket digital blackouts also raises important questions about democratic rights, access to information, and state overreach.

As Bihar moves closer to its crucial state elections, incidents like these will likely be used by different political factions to push communal narratives. The role of law enforcement in ensuring neutrality and preventing further violence will be a key test for the administration in the coming months. If not handled carefully, the Jamui clash could become yet another episode in the deepening communal fault lines in India’s political and social fabric.

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The post Communal Tensions Erupt in Bihar’s Jamui: Alleged stone-pelting during religious procession leads to violence appeared first on SabrangIndia.

The Coronation …

“By the beginning of 1673 the idea of a public coronation began to materialize, and when preparations were fully completed, the event took place at fort Raigad, on Saturday 5 June 1674, the day of the sun’s entering the constellation Leo.

The orthodox Brahman opinion was not favourable to Shivaji’s claim to be recognised as a Kshatriya by blood, although he had proved this claim by action. More than a thousand years had passed since such a ceremony was last performed, and on that account men’s memories had been entirely dimmed. All ancient learning of the Deccan had migrated to Benares after the invasion of Ala–ud–din Khilji and the Muslim conquest of the Deccan.

Ancient families noted for hereditary learning like the Devs, the Dharmadhikaris, the Sheshas, the Bhattas, the Maunis, had left their hearths and homes at Paithan, with all their sacred books, and opened their new university of letters on the bank of the holy Ganges. The ignorant unthinking folks of Paithan had now no voice of authority left in them. Benares now began to dominate Hindu thought and learning. So Shivaji had to negotiate with Gaga Bhatt of Benares, a learned representative of that school of Hindu law–givers. He was invited to Raigad to arrange the details in such a way as to suit the needs of the present moment as much as to conform to ancient usage.”

(New History of The Marathas, Govind Sakharam Sardesai).

(Archived from the October 2001 issue of Communalism Combat)

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As Imam Muhsin famously said, “The heart is not big enough to contain both fear and faith. You choose.” He chose faith, and was willing to be true to his interpretation of Islamic teachings, despite years of experiencing threats of violence from conservative extremists. Through his teachings and queer-affirming Al-Ghurbaah Mosque in South Africa, he inspired Muslims locally and globally to live authentic lives without abandoning their faith.

In addition to our gratitude for his work overall, we at MPV particularly want to acknowledge his contributions to our advocacy efforts in Urdu, including delivering this lecture to Urdu-speaking audiences.

While there is much we don’t yet know about the circumstances of his death, we know too well the many death threats Imam Muhsin had received over the years. We are disgusted by those condoning his murder and it is this theology of hate and of homophobia that has resulted in the intense threats on his life. We join Muslims and allies around the world in calling for the South African government to leave no stone unturned in investigating the motivation for his murder, and as a possible hate crime.

The attack on Imam Muhsin comes at a chilling time of increased violence against LGTBQ people all around the world, including in the US, and we call on Muslims to show compassion and support for this increasingly vulnerable population.

We join Muslims and allies worldwide in offering prayers for justice and healing for all of those impacted by this horrific killing. We call on all Muslims, regardless of our political and religious differences, to build a culture of tolerance and curiosity for various interpretations of Islam. At MPV, we will continue to advocate for freedom of religion for all, and freedom from persecution for all, demonstrating the beauty of Islam just as Imam Muhsin did.

A Statement from the Colleagues of Imam Muhsin at the Center for Contemporary Islam at University of Cape Town.

Indeed to Allah we belong, and indeed, to Allah we return. We are reeling from the targeted assassination of Imam Muhsin Hendricks, the first openly queer Imam in South Africa. Imam Muhsin was a pioneer in the rights of queer Muslims having previously led The Inner Circle and more recently the Al-Ghurbaah Foundation. He was recognised as a global leader who created a space to reconcile Islam, faith and sexual diversity, and provided a refuge for young queer Muslims that had been rejected in their homes. Muhsin courageously tracked a path of religious inclusivity and a vision of Islam as a home for all.

His theology was a liberation theology: God is a God of radical love and justice for all human beings. The safe space created by his work brought relief beyond the community of queer Muslims, extending to refugees, people who were homeless, those marginalised without community and belonging, for whom he provided a space of inclusion.

Despite this, we are also reeling from the ways in which some Muslims are condoning his assassination on social media. The compounded horror of such violence and brutality has brought into sharp focus the intense homophobia permeating the Muslim community.

This is a time for each of us as individuals, as well as in our collectives, whether in mosques, in community organisations, in our Palestinian solidarity formations, to deeply reflect on the ways in which our work for justice must be all-inclusive, and the right to dignity is unconditional.

In the last two years we have witnessed a genocide enabled by the language of dehumanisation of Palestinian people. It is the same underlying logic of dehumanisation that enables a targeted assassination of a queer human being who stood up for justice. We must recognise that when we are silent in the face of homophobia, patriarchy and

Zionism, we enable not only violent systems, but systems that perpetuate violence and death. We are both ethically and spiritually accountable.

The Prophet Muhammad (pbuh) was sent as “Rahmatan li-l-Aalamin,” a mercy to all worlds, everywhere in all times. Every human being deserves justice and dignity.

Imam Muhsin has completed his work on this earth; it is for us to begin ours. Let us have the difficult conversations, let us grow seeds of love, justice and compassion. Let us truly engage what it might be to follow the sunnah of the Mercy to the worlds.

We salute your courage, Shaheed (Martyr) Imam Muhsin. May your soul be embraced in love and compassion by Allah. Dear contented soul, return to your Lord; may your Lord be pleased with you, may you be pleased with your Lord. May the work of justice, love and inclusivity that you worked so hard towards be realised. May we grow our communities in the work of justice, love and all-inclusive dignity.

The post Progressive Muslims condemn the assassination in South Africa of the world’s first gay Imam appeared first on SabrangIndia.

As they tell you about the life of a woman, the pain, the burden, the labour, you will smile and laugh because they will package your horrifying future in fairytales, song and dance, couture, grand palaces, fitting tributes to motherhood being the greatest experience in the world, so much so that you will hope and pray and eagerly await this time of your life. You will dream of a love that sweeps you off your feet, you will dream of a man who sees you for who you are, you will put aside your ambitions and dreams and “hobbies” and your individuality to fit into his life and be part of his family. You will water yourself down to the barest bits, till you are palatable, till you fade into a corner, till you are unrecognizable from who you once were. This will be the biggest tragedy of your life.

But it will be grand and you will look so pretty and everyone will be so happy so you will silence the tiny voice at the back of your head, wear your Sabyasachi and go meet the love of your life and leave your life and individuality behind with great pomp and show. At first, it will seem beautiful, this new life. You will love the feeling of love; you will enjoy the affection this man will shower on you. You will take his last name, and his dishes off the table, and his dirty underwear and his parent’s expectations and you will run with them. You will submerge yourself in these and allow the validation and placation you feel all around you, not to mention the warm glow of love to slowly fill the void in your soul that came from who you once used to be. You will serve him and his family in the kitchen during the day and you will serve him in his bed at night. You will enjoy it, and you will call it your choice and you will vociferously declare that you are the master of your fate and that love is everything and family is everything and you will be a willing slave to the expectations put upon you by this “family”. Nothing you ever do in this house will be enough. No amount of labour, no amount of effort, no matter how out of your way you go, you will be considered an outsider that is just doing your duty, and not well enough. You will bear his children and if you don’t want to, he will rape them into you. You will push yourself and push yourself and push yourself and that niggling voice will now come back screaming and swinging. You will hold your child that tore you open coming out, you will love it, and you will swallow the pain.

But the child will bear his name, the child will be his legacy, the child will be part of his family, and you will be only the cavity through which it came into the world, and the labourer that will raise it. The voice will by now consume you. You will fight it, fight to close your eyes to the reality fight to tell yourself that this is still your choice and the love that has faded in the background and been replaced with responsibility and expectation and servitude still exists and you are staying because of it, not because you are bound, not because there is no choice anymore and there never was but because you love him.

You love him? And this is your family. Is it? You will start rebelling and fighting and crying. You will fight and rage and cry, but you will still serve him in the kitchen in the morning and in the bedroom at night. You will think you can say no and so you will try to say no one day, and that will be the day you will learn. You will learn that he can do with you as he pleases. You will learn that whether he wants to shove his dick in you or his fist, it is all the same and it is all permissible because he is your husband, because you wore the Sabyasachi in a beautiful palace, and the flowers rained down and you walked down the aisle and sold yourself to his mercy. You will know that your blood, your bones, your voice, the tendons and muscles and your hands and legs, your back and front all belong to him and he can use any of them as he sees fit. The men that were supposed to protect you, the woman that brought you into this world, you will soon recognize them as the butchers that prepared you for slaughter.

Like a lamb you went beautiful and trusting and now on the chopping block with your spine broken. You will cry and bleat but the judges and the juries and the executioners will watch as he brutalizes you for his pleasure or for his power or for a fantasy and they will let him. And when he has gotten off and left you bloody and for dead, when he’s ripped you open this time not to bring life into the world but to take yours out, when that voice has been silenced forever and your vessel has served his purpose to him, you will be discarded. They will see his hands stained red with your blood, and they will look at your broken body and your gaping cunt and they will declare him not guilty.

Those men that protected you did it so one man and one man only could stake his claim on you, so he will be your first, your last, your only and your first breath was drawn to serve him and your last breath also served him, so is it a crime for a man to do as he sees fit with his property?

No. Is it a crime for a man to feel overwhelming passion for his wife? No. You, my love, were made for this. You didn’t know and the handcuffs were red and looked a lot like love and they were made of blood but you didn’t know. You didn’t know that the only good wives are the ones that die in silence on the inside before their death ever comes for them.

You didn’t know that often the wolves that own our bodies and drink our blood say ‘I love you’ and ‘Happy Anniversary’ and those who say they will save and protect and love us sell us to the wolves for a bent spine followed by a pat on the back.

(The author is a student of law in Mumbai and can be contacted at parulekarpriyanka02@gmail.com)

Related:

A Licence to Violate: Chhattisgarh HC’s ruling on marital rape exposes a legal travesty’

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A heinous crime and a judicial betrayal

The case in question is as gruesome as it is tragic. A woman was subjected to brutal sexual violence by her husband, which led to severe internal injuries and ultimately her death. In her dying declaration, she explicitly accused her husband of forceful sexual intercourse, an allegation corroborated by medical reports stating that she suffered from peritonitis and rectal perforation—injuries directly linked to the assault. Despite these damning details, the Chhattisgarh High Court overturned the trial court’s conviction and acquitted the accused of all charges, including culpable homicide, rape, and unnatural sexual offences.

The trial court in Bastar’s Jagdalpur had convicted the man under IPC Sections 304 (culpable homicide not amounting to murder), 375 (rape), and 377 (unnatural sexual offences), sentencing him to 10 years in jail. However, the High Court, in a deeply flawed reading of the law, ruled that the marital rape exception under Section 375 must also apply to Section 377. Justice Narendra Kumar Vyas held that because Indian law does not criminalise non-consensual sex within marriage, it cannot criminalise non-consensual unnatural sex either. This interpretation effectively grants husbands unchecked power over their wives’ bodies, insulating them from criminal liability even in cases of brutal sexual violence.

A judicial leap of absurdity

Justice Narendra Kumar Vyas, in his ruling, contended that the marital rape exception must extend to unnatural sexual offences under Section 377 of the IPC, as recognising consent for one while ignoring it for the other would be “inconsistent.” He argued that Exception 2 under Section 375 explicitly exempts a husband from being prosecuted for rape, thereby establishing that consent is not a legal requirement within marriage. Extending this logic, the court held that if forced vaginal intercourse by a husband is not considered rape, then non-consensual unnatural sex within marriage should not be treated as an offence either.

“Thus, it is quite clear that at the same time, as per the definition of Section 375 of IPC, the offender is classified as a ‘man’. Here in the present case, the appellant is a ‘husband’ and victim is a ‘woman’ and here she is a ‘wife’ and parts of the body which are used for carnal intercourse are also common, therefore, the offence between husband and wife cannot be made out under Section 375 IPC as per the repeal made by way of amendment and in view of repugnancy between both the sections,” the bench added to the judgment.

The High Court further justified its decision by invoking a legal principle stating that when two provisions are inconsistent, the newer one takes precedence and nullifies the older law. While both Sections 375 and 377 were introduced simultaneously in the IPC, the 2013 amendment expanded the definition of rape while retaining the marital rape exception. Based on this, the court concluded that the modified provision effectively overrode Section 377 in the context of marriage, making non-consensual anal or oral sex between spouses legally permissible.

On the culpable homicide charge, the prosecution had relied on the woman’s dying declaration, which was recorded before an executive magistrate just hours before her death. In this statement, she had accused her husband of brutal sexual violence, which resulted in fatal injuries. However, the High Court dismissed this as unreliable, arguing that the declaration did not explicitly link the injuries to forced intercourse. Justice Vyas noted that while the trial court had accepted the dying declaration as evidence, the magistrate who recorded it testified that the victim had provided additional details separately. The High Court, in an astonishing twist, ruled that because a dying declaration should stand on its own without requiring corroboration, any additional statements made outside of it could not be relied upon.

Labelling the conviction under Section 304 (culpable homicide) as “perverse,” the court quashed the sentence, declaring that the trial court had failed to establish how the offence was proven beyond doubt. It criticised the lower court for convicting the accused without providing a clear basis for how Section 304 was applicable, ultimately ordering the husband’s immediate release from jail.

Further bolstering its decision, the court reiterated that since Exception 2 to Section 375 remains part of the statute, sexual intercourse between a husband and wife—no matter how violent or non-consensual—cannot be considered rape unless the wife is under 15 years of age.

“It is quite vivid that when everything is repealed under Section 375 of IPC then how offence under Section 377 of IPC would be attracted if it is committed between husband and wife,” the judgement stated.

It failed to acknowledge that the Supreme Court, in its 2017 Independent Thought ruling, had already struck down this age limit, declaring that sex with a wife under 18 years constitutes rape. The High Court, however, ignored this precedent, relying instead on an outdated and legally untenable reading of the law.

Justice Vyas took the argument even further, questioning how a husband could be prosecuted under Section 377 if every form of sexual intercourse between spouses was legally protected under the marital rape exception. He insisted that when the legislature retained the exception in 2013, it effectively nullified any conflicting interpretation that could criminalise a husband’s sexual acts against his wife. By this reasoning, he concluded that no offence under either Section 375 or 377 was made out against the accused, since the law does not recognise a wife’s lack of consent as relevant in marital relations.

The complete judgment may be read here.

A Pattern of Judicial Misogyny: The Madhya Pradesh High Court’s precedent

The Chhattisgarh High Court’s ruling is not an anomaly—it reflects a wider pattern of Indian courts failing married women. In a similarly outrageous judgment, the Madhya Pradesh High Court in Meghna Agarwal Vs. Anurag Bagadiya and another (2022) granted anticipatory bail to a husband accused of forcibly sodomising his wife, citing the marital rape exception. The court reasoned that Section 377, meant to criminalise unnatural sex, could not apply within marriage unless extreme cruelty was established. This interpretation disregards the fundamental principle that any non-consensual act—whether vaginal, oral, or anal—constitutes sexual violence.

By treating marriage as a protective shield against prosecution for sexual crimes, Indian courts are actively enabling spousal rape. These rulings institutionalise a grotesque double standard: a married woman’s suffering is deemed legally irrelevant in situations where an unmarried woman would receive full protection under the law.

Institutionalised discrimination against married women

The most glaring problem with this ruling is its blatant discrimination against married women. If the victim had been a minor or an unmarried woman, the accused would have been found guilty of rape. If the accused had committed the same acts against a stranger, he would have been punished under Section 377. The only reason he walks free today is because the victim was his wife—an outrageous legal position that strips married women of their fundamental right to bodily autonomy.

The present ruling also contradicts the Supreme Court’s Independent Thought judgment, which recognised marital rape in cases where the wife is below 18 years of age. In November 2024, in the case of S v. State of Maharashtra, the Bombay High Court ruled that sex with a minor wife is rape, reaffirming that the legal age of consent is 18, irrespective of marital status. Justice G.A. Sanap categorically rejected the argument that marriage grants automatic sexual rights over a wife’s body. Similarly, in other instances, courts have recognised that non-consensual sexual acts within marriage can be prosecuted under different sections of the IPC. Yet, the Chhattisgarh HC has chosen to take a regressive approach, doubling down on an archaic and indefensible legal exception. If forced sex with a minor wife is rape, why should force sex with an adult wife be any different? The ruling reinforces the deeply patriarchal notion that marriage gives a husband unchallenged ownership over his wife’s body, a mind-set that has no place in a constitutional democracy.

The Supreme Court’s deafening silence

This verdict also highlights the Supreme Court’s prolonged inaction on the marital rape issue. For over two years, petitions challenging the constitutional validity of the marital rape exception have been pending before the apex court. The government, instead of addressing the issue head-on, continues to argue that criminalising marital rape would be “excessively harsh” on husbands. This reluctance to act allows judgments like the Chhattisgarh High Court’s to flourish, reinforcing the idea that Indian wives have fewer legal protections than other citizens.

Worse still, the recently enacted Bharatiya Nyaya Sanhita (BNS), which replaces the IPC from July 2024, retains the same marital rape immunity and removes Section 377 altogether. This ensures that even the narrow protections married women had under the IPC will now cease to exist, further embedding this archaic injustice into law.

A dangerous precedent for women’s rights

The Chhattisgarh HC’s verdict is not just a legal travesty—it is a dangerous precedent that further erodes the rights of married women. By normalising the idea that consent is irrelevant in marriage, the ruling effectively sanctions sexual violence within matrimonial relationships. It also sends a chilling message to victims: the legal system will not protect you if your rapist is your husband.

If Indian courts and lawmakers truly believe in gender equality, they must abolish the marital rape exception and recognise a woman’s right to say no, irrespective of her marital status. Until then, judgments like these will continue to legitimise spousal sexual violence, condemning countless women to a lifetime of abuse with no legal recourse.

This is not just a failure of the judiciary—it is a failure of the Indian legal system to uphold the fundamental rights of half its population.

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