Marital Rape : Are There Precedents Of Courts Striking Down A Provision To Create An Offence? Delhi High Court Asks

The Delhi High Court on Monday 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.

A bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar asked Senior Advocate Rajshekhar Rao, appearing as amicus curiae in the matter, as to whether there is any precedent of Court striking down a statutory provision to criminalize an act.

Justice Hari Shankar today orally remarked that the arguing lawyers have not so far cited any precedent laid down by the Supreme Court which states the principles on which a statute can be declared as unconstitutional especially in the context of a statute dealing with a criminal offence.

"Are there any decisions in the past where the statute which has said that an act is not an offence, has been quashed or struck down by the Court, either Supreme Court or High Court? We have cases like sec. 377 where the act was an offence which has been struck down. I want to know whether we have any precedent in the past where we have some guidelines as to how courts have looked at such a situation where the statute does not categorize it as a particular offence and it has been struck down by a Court," Justice Hari Shankar remarked.

Justice Shakdher, on the other hand, posed a similar query by remarking thus:

"The arguments which are to be developed further is that if there is no precedent, does it mean that every Court evolves its own precedent? And there are not one but several cases where Supreme Court has struck down even constitutional provisions, what to talk about the statutes which deal with civil obligations. So when you are looking at case law, you have to look on that case law as well? If the SC has empowered you to strike down a constitutional provision, are we emasculated of the power to deal with a criminal offence?"

During the course of the hearing today, Rao began by relying on a Supreme Court judgment titled Aparna Bhat v. State of Madhya Pradesh to highlight the aspect of the impact of sexual acts including rape on a woman, especially in the context of a wife.

On this, Justice Hari Shankar remarked:

"Does the exception to Section 375 says that in the context of wife, rape is permissible? It, first of all, says it's not rape. So it can never say that in the context of wife, rape is permissible."

"You have to keep in mind, we have to keep a dispassionate view in this. We can't be seen as already having prejudged or taken a view one way or the other. Let us not have these caveats. I don't see how the provision says in the context of wife, rape is permissible."

Justice Hari Shankar asked when the exception to Section 375 declared that sexual intercourse by a husband with wife as not rape and hence, could it be seen as giving protection from the offence of rape.

Responding to the aforesaid, Justice Hari Shankar said:

"Let us assume that the ground on which, as you say, that this exception was engrafted on the basis of a theory which existed 260 years ago….Let's assume that it was the basis of which it was enacted. Now you also said that after Justice Verma's report, the matter went to the parliamentary committee and it said that we want to retain it to stabilize the institution of marriage. Assume that the Court finds that both these considerations are not sufficient to justify the exception. Or even otherwise, if we go into the object of sec. 375 as an existing enactment today and we feel that there is in between a situation which arises between an unmarried couple and a married couple, there is a differentia and that differentia is sufficient to justify the act in latter's case as rape, let us assume, the Court comes to a conclusion but not on the reason of institution of marriage or Hale's exception etc. In such a situation, is it that the Court should strike it down even when the Court does have a rational basis or there is an intelligence differentia in the two situations and this distinction have a rationale with the object sought to be achieved, assume this, is the Court still to go by the parliamentary committee, Hale's exception and then decide the matter?"

To this, Rao responded that for the Court to find the distinction as rational, the classification test enumerated under Article 14 has to be satisfied. He added the next question to be determined thereafter would be to see if the statute is then violative of other provisions of Part III of the Constitution, mainly Article 21.

"The question would be that what could be the legitimate reason for distinguishing a married woman or segregating married woman as a class and unmarried woman. When you separate, you have indicated your consent to not remain in the marriage. Whether legally or otherwise, you message is loud and clear," Rao submitted.

To this, Justice Hari Shankar responded:

"It is not as to how I see it, whatever I am saying is prima facie, and with deeper consideration, I might take a different view. Prima facie, it is not as to the exception carving out a difference between married and unmarried woman. The exception is carving out a difference between an act of sexual intercourse being without willingness or consent of woman being committed within parameters of a marital relationship and a non-marital relationship."

"If we keep looking at it only from the point of view of the woman, then we are really not appreciating….The section says this act is not rape. In any criminal statute, there are four ingredients. There is a perpetrator, there is a victim, act and a punishment. This is not a provision that is only victim-oriented. It looks at the act. Therefore this act has got the man committing the act, it has got the act itself which is the act of sexual intercourse without willingness of the woman. Of course, it will be without the willingness of woman because she is the victim. This whole cocoon, the exception says this act committed within the marital sphere shall not be treated as rape. Whenever we go on saying that it's distinguishing a woman who is not married and a woman who is married or that the entire section is based on the premise of consent, the moment you bring consent, again you are looking at it from the point of view of the woman. So it's not an act which creates an exception in case of woman of a particular type or in a particular relation, it is an exception which creates a particular type of act, an act committed in a particular scenario, that has been excepted."

"What I felt was, when a man and a woman are not married, howsoever close their relationship was, the man has no right to expect any kind of sexual congress with the woman. You may be the closest but you have no right. But when they are married, there is a moral, social and legal right also, legally sanctified right of each partner to expect some kind of meaningful and reasonable sexual relations with the other. Of course, no force and no compulsion. So it's not my case that when they do it unwillingly, it shouldn't be condoned. It's not the case here. But given that expectation, if the legislature thought that an act of sex without willingness of wife, should not be made rape, calling it rape has several connotations but it carries with it the punishment and entire sec 375 goes with it. So if the legislature felt that this act, if it is committed in a married situation, where there is actually an obligation also of each party to permit the other party to have meaningful conjugal relations sanctified by law and morality, if it felt that it should not be treated as rape and if we are to say that it has to be treated as rape and nothing else, we have to make out a case that the consideration which would have weighed with the legislature of the difference between a relationship between married and unmarried situation, is either totally irrelevant or it is insufficient to make this distinction. And looked at from the purview of the act."

Centre seeks time for consultations

When the hearing started today, the Solicitor General of India Tushar Mehta today sought reasonable time from the Bench in order to formulate the Union Government's stand.

"Considering that it is a 2015 matter, if your lordships can grant us a reasonable time. This might need a little consultation etc," he said.

Justice Shakdher expressed unwillingness to defer the entire hearing, saying that the bench is already in the middle of arguments. The Judge said that the bench will hear the other lawyers for now and the Union Government can respond later, after its consultative process.

Earlier, the Centre had informed the Court that it is undertaking a consultative process on the issue and has sought the views of the stakeholders.

Previously, Rao had submitted before the Court that while the legislature does not say that the husband is entitled to sexually assault or abuse his wife, however, the marital rape exception suggests that a man can rape his wife and get away from the prosecution of rape.

Rao had also argued that "a rape is a rape" and that no amount of classification or 'legal jugglery' can alter that reality.

On the other hand, the Delhi Government submitted that the exception to Section 375 of IPC pertaining to non-criminalization of marital rape does not leave a married woman remediless pursuant to forced sexual intercourse by her husband. It also submitted that the exception does not compel a wife to have sexual intercourse with the husband and that the remedy of divorce, including other remedies under the criminal law, is available to her in such situations.

Earlier, two of the petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA) told the Court that the marital rape exception provided under Section 375 of the Indian Penal Code violates a woman's right to dignity, personal and sexual autonomy and her right to self expression enshrined under the Constitution of India.

Previously, Senior Advocate Colin Gonsalves appearing for one of the petitioners argued that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.

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