5 Reasons Why Striking Down Marital Rape Exception Will Not Create A New Offence : Justice Rajiv Shakdher Explains

Delivering a split verdict while disposing of a bunch of pleas seeking criminalisation of marital rape, Justice Rajiv Shakdher of Delhi High Court, who ruled in favour of striking down the marital rape exception, has observed that striking down the marital rape exception would not result in creation of a new offence.

The judge was responding to the respondents' argument that the striking down of the exception will amount to the creation of a new offence, and that only legislature can create a new offence.

Justice Shakdher listed five broad reasons as to why the submission that if one were to strike down exception 2 to sec. 375 of Indian Penal Code, it would create a new offence, as misconceived.

Firstly, Justice Shakdher said that the offence of rape is already defined in the substantive part of sec. 375 of IPC and tha the sexual acts which are described in Clauses (a) to (d) constitute rape if they fall within any of the seven circumstances alluded to in the said provision.

The Judge observed that if the exception in question is excised, all that would happen is, it would extend the ambit of sec. 375 to even offending husbands.

"There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape," Justice Shakdher observed.

Secondly, Justice Shakdher said that a new offence or new crime would perhaps have been created if the ingredients of the offence had changed. However , he added that it was no one's case that the ingredients of the offence have changed and that all that would happen if the exception is struck down is that the offending husband would fall within the ambit of the offence.

Thirdly, the Judge said that reading down, filling gaps or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful.

Fourthly, the Judge said that the marital rape exception seeks to ring- fence the offender based on his marital relationship with the accused.

"The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds," the Judge added.

Fifthly, the Judge said that the the penal law is act or omission centric and, in most situations, is neutral to who the perpetrator of the crime is. He added that the fact that in certain cases relationship enters the fray does not dilute the fundamental premise on which penal laws are pivoted, which is, that they punish the act committed (or its omission); which is made punishable, irrespective of the relationship between the offender and the victim.

"As noticed above; for example, qua the offence of harbouring a deserter, an offender, an escapee or a robber or a dacoit, the IPC, excludes the spouse from the rigour of prosecution. [See Sections 136, 212, 216 & 216A.] These provisions and the like would not sustain the argument that MRE should remain on the statute as, firstly, the dissonance that MRE creates by excluding a particular set of offenders from the ambit of the main provision is not found in such examples. Secondly, these are provisions which do not concern the perpetration of sexual violence by one spouse on the other, i.e. the husband on his wife," the Judge said.

Thus, Justice Shakdher was of the view that the submission made by Advocate J Sai Deepak, who appeared for intervenor NGO Men Welfare Trust, that the judgments cited on behalf of the petitioners as in the case or Shreya Singhal and Navtej Singh Johar would have no applicability as they relate to a constitutional challenge to a criminalizing provision was "unsound as it fails to recognize the fact that MRE is constitutionally suspect because it suffers from "under inclusivity" and fails to furnish a "determining principle" as to why offending husbands should be left out from the rigour of rape law."

"Thus, for the reasons given above, I am not persuaded to hold that striking down MRE would result in the creation of a new offence," the Judge concluded.

Accordingly, Justice Shakdher held that the impugned provisions i.e. Exception 2 to sec. 375, 376B of the IPC as also sec. 198B of the CrPC, insofar as they concern a husband or separated husband having sexual communion or intercourse with his wife (who is not under 18 years of age), albeit, without her consent, as violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and struck them down.

The aforesaid declaration would, however, operate from the date of the decision, the Judge added.

Justice Shakdher also held that the offending husbands do not fall within the ambit of the expression "relative" contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.

The Court today passed a split verdict on 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.

However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia.

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

Also Read : Forced Sex By Husband On Wife Should Be Labelled Rape; Right To Withdraw Consent Part Of Woman's Right To Life & Liberty : Justice Rajiv Shakdher On Marital Rape

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

Citation: 2022 LiveLaw (Del) 433

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