Leave It To Trial Courts To Decide How Marital Rape Is Proved : Colin Gonsalves To Delhi High Court

The Delhi High Court on Friday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Senior Advocate Colin Gonsalves, representing one of the petitioners, argued before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar that it while determining the constitutionality of the Exception 2 to Section 375 Indian Penal Code, it was not necessary to consider how the offence of marital rape will be proved. He said that the trial courts will decide that question and the jurisprudence in that regard will be developed by the trial court once marital rape has been criminalized.

The senior counsel told the bench that it is not within the adjudicating capacity of a Writ Court to "conjure up myriad circumstances of coercion and consent" and bring such determination within the ambit of a constitutional challenge to a specific provision of the Code.

Gonsalves argued that it will be premature for a Constitutional Court to decide on the said issues as the same will depend on the individual factum of cases which will be adjudicated by the Trial Courts while determining the spectrum of issues involving the question of wife's consent and husband's coercion.

"Once the High Court or any court strikes down the exception and marital law becomes applicable in India and trial courts start trying cases for first time and deliver judgments on spectrum of facts, facts as to coercion, was the husband coercive, facts as to consent….Ultimately the law relating to what exactly constitutes coercion or consent...those judgments will emerge from trial courts, which will then come to High Courts and Supreme Court and only then answers to these questions can be done. Today it will be very premature to give answers to these questions," Gonsalves argued.

He added that it is not within the adjucating capacity of a Constitutional Court to imagine the broad spectrum of possibilities and then to come to a conclusion that it was doubtful it should abolish the exception.

"That wouldn't be within the thought processes when you are adjucating the constitutionality of a provision. That is left for the development of law regarding matrimonial consent," he said.

Gonsalves said that in the unravelling of the said "knotty legal problem", the roles of the Constitutional Courts and that of the Trial Courts will be very different. He argued that the Constitutional Courts are only concerned with the constitutionality of this provision of law and that once the declaration of unconstitutionality is made, the task of the High Court is done.

"The place where the disputes regarding marital rape will be adjudicated will then shift to the Trial Court. This Constitutional court cannot desist from dealing with the constitutionality of the exception on the ground that it would be nigh impossible for the woman to prove marital rape since it sometimes happens in the confines of the household and in private," Gonsalves argued.

He added "It is a settled legal position vide several judgements of the Hon'ble Supreme Court and High Courts that if the statement of the prosecutrix is consistent, clear and unimpeachable, the same is enough for cognizance to be taken of the offence. Furthermore, all cases should be decided on their women merits and on the basis of the evidence led by the parties."

Adding that the High Court is only the institution of first instance which cannot solve all the problems in one go, Gonsalves said that after the judicial exercise of the High Court, Parliament will be called upon to apply its collective mind as to how, if at all, the generic definition of coercion and the generic definition of consent has to be elaborated by making law.

"It may also regrettably be called upon to decide as to whether, if at all, a lesser punishment ought to be prescribed in the Penal Code, or whether the crime of marital rape ought to be compoundable and capable of being settled between the parties. No part of this exercise is to be done in these proceedings. In what circumstance the husband's conduct would amount to coercion, and the wife's conduct amounts to consent has been discussed during these proceedings at length. They have enriched the discussion but they are, nevertheless, being made in the wrong institution," Gonsalves argued.

At the outset, Justice Shankar told Gonsalves that the Bench might be taking an extreme approach if the Court, while examining the constitutionality of impugned exception, does not examine and consider the aspects of consent and punishments and leave it to to be developed by Courts in future.

"I don't think we can take that approach. That will be a very extreme approach," Justice Shankar orally remarked.

Gonsalves responded by arguing thus:

"I am only saying……that there are some shades of coercion and consent...it's beyond the adjudicating capacity of the High Court and beyond the capacity of any lawyer to imagine….I think I expressed myself very poorly."

On the aspect of danger of misuse of a law, Gonsalves referred to the judgment of the Supreme Court in Sushil Kumar Sharma v. Union of India to submit that a law does not become unconstitutional merely because of the possibility of its misuse.

Reference was also made by Gonsalves on the independent thought judgment to argue that while all the observations are not applicable to the present batch of petitions as the Apex Court was dealing with a case of minor wives, however, many observations are directly applicable to the matter.

He ended today's submissions by arguing that the Apex Court's observation that the striking down or reading down of the exception to sec. 375 does not create an offence is binding in the present case.

The matter will now be heard on Monday.

In another development, Centre has reiterated its request to defer the hearing for providing a stipulated timeline within which it would conduct an effective consultative process in order to assist the Court on the issue.

Marital Rape Exception: Centre Requests Delhi High Court To Defer Hearing In View Of Pending Consultative Process

In an additional affidavit filed dated February 3, 2022, the Centre has submitted thus:

"In the most respectful submission of the Central Government, considering the social impact involved, the intimate family relations being the subject matter and this Hon'ble Court not having the privilege of having been fully familiarised with ground realities prevailing in different parts of Society of this large, populous and diverse country, taking a decision merely based upon the arguments of few lawyers may not serve the ends of justice."

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Case Title: RIT Foundation v. UOI and other connected matters