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, provided the wife is above 15 years of age.
Senior Advocate Rajshekhar Rao, appearing as amicus curiae in the matter, told a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar 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 began by arguing on the aspect of consent by showing a video to the bench wherein consent was explained with reference to making a cup of tea.
"If legally the law sanctions a cause of action which allows you to enforce your right of legitimate expectation as a married man to sexual intimacy with wife but does not give you the authority of law to force the wife to sleep with you, I ask myself, then within the same jurisdiction, the same legal framework, is it reasonable atleast from the constitutional standpoint or on reasonableness or intelligible differentia standpoint, to suggest that you can still then sleep with your wife without her consent. She is not even saying that I'm going to divorce you. She is saying just for that one day, I'm not in the mood today," Rao argued.
He added that while the legislature did not mean to justify the act of marital rape, however, what it subtly does is that when a husband indulges in sexual intercourse with his wife despite her lack of consent in an otherwise happy marriage, he will not be called out for raping her.
"The question therefore that your lordships have to ask is whether today such a distinction based simply on the basis of relationship of parties which prevents the woman from prosecuting her husband for the act that the law recognizes is otherwise rape? The indirect effect of the provision, as it denies the woman the ability to prosecute the husband for rape which is sexual intercourse without consent, has the practical effect of obliterating her consent altogether," he argued.
Furthermore, Rao advanced arguments that the classification on the basis of marriage is unreasonable and offends Article 14.
"From a reasonableness standpoint which is foundation of Art. 14, is it reasonable in a constitutional democracy to suggest that merely because you are married to the man and five minutes ago you would have the ability to prosecute him for rape….is it conceivable that if he would have done it 5 minutes before marriage, she would have prosecuted and said I will not marry you. The fact that merely because she has decided to marry a man who has now decided to ignore her consent, does that entitle the legislature to say that it is intelligible for me to differentiate between the two relationships and deny her the ability to prosecute him for that one act."
Rao argued that while the whole basis of law under sec. 375 is consent or the lack thereof, there has to be a credible justification for the legislature to say that the same physical act done in similar circumstances, wherein a woman saying no, does not become rape merely because of the relationship of the parties being their marriage.
He then took the Court through sec. 375 and 376C of the Indian Penal Code which provides for rape and sexual intercourse by a person in authority respectively, thereby showing the contrasting position adopted by the legislature over the same physical act.
"This is a case where the law steps in and takes a moral judgement in a situation where consent is given because the law takes the position that this consent itself has a legal problem. It tantamounts, according to them, abuse by someone who may be in a slightly higher hierarchy of relationship," he argued.
Rao submitted "The question is what is the treatment that the law gave and what is the justification for the exception? Surely it cannot be institution of marriage."
Hearing Rao's submissions on the aspect of consent being material in such a situation, Justice Hari Shankar orally remarked thus:
"The statute does not say that the absence of consent is irrelevant in a case except where there is rape and perpetrator is the husband and victim is the wife. It doesn't say that for a simple reason that if the perpetrator is the husband and victim is wife, it is not rape. Then you are trying to make it weird. Nonetheless I will not look at consent. The entire argument which you also are advancing, it is not kind of noticing the issue before the Court in my prima facie view. You said consent is the main issue. With great respect, Mr. Rao, consent according to me is not the issue here. You can make the submission and we will hear it but according to me, prima facie, consent is not the issue here."
He added "According to me, there is a differentia. It's not made out on consent or no consent or anything. I am sure you will address it."
Therefore in response, Rao argued that although the legislature does not say that the husband is entitled to rape his wife, however the question is that does the same effectively translate into that in real terms.
"Only on the act of rape. The legislature doesn't say that the husband is entitled to sexually assault his wife, abuse his wife. But it does seem to suggest that a man can rape his wife and get away from the prosecution of rape," he argued.
On the aspect of expectations of intimacy in minds of a married couple, Rao posed a question as to whether the husband becomes entitled to expect that the wife will succumb to him every time.
"The principle that no one can compel a woman to make love is foundation of sec. 375 but for the exception. When you force your wife you're definitely not engaging in lovemaking, as an act of love or something that comes in parcel of that territory," he argued.
He said "The question I ask myself is, where is the sanction in law saying you can do this to your wife?"
Adding that the basis of the classification is the relationship of marriage, Rao said that whether such a position in itself is sufficient to deny a woman the ability to call the act committed by the husband as rape.
"The law should not hesitate in calling a spade, a spade. The law has a duty to protect an oppressed person. It's a strange case where the law says I will step in, I will assist you but I will not let you call it out for what it is. That is where the problem lies," he argued.
Rao concluded today's submissions by relying heavily on the Supreme Court judgments in Joseph Shine v. Union of India, KS Puttuswamy v. Union of India and NALSA v. Union of India.
The matter will now be heard on Monday.
Rao had yesterday 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