Assumption That Wife Forced To Have Sex With Husband Feels Same Degree Of Outrage As Woman Raped By Stranger Is Unrealistic : Justice Hari Shankar

Delivering a split verdict in pleas seeking criminalisation of marital rape, Justice C Hari Shankar of Delhi High Court, who upheld the constitutional validity of marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that there is no inherent fundamental right in the wife to have her husband convicted for rape, relatable to Article 21, 19 or any other Article in the Constitution.

Justice Shankar added that the marital rape exception thus merely disapproves the use of the "rape" vocabulary in the context of marital sexual relations and that the wife has other alternative civil and criminal remedies to invoke in such situations.

While saying there can be no compromise on sexual autonomy of women or the right of a woman to sexual and reproductive choice, Justice C Hari Shankar did not accept the argument that in treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature acted unconstitutionally.

"The distinction in my view, is founded on an intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed by Part III of the Constitution," the Judge added.

The impugned Exception, far from being unconstitutional, serves a laudatory purpose, and is in pre-eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests.

The 'institution of marriage', and the intelligible differentia that results

Emphasizing on the institution of marriage, the Judge was of the view that the relationship between husband and wife, which emerges as a result of the tying of the proverbial matrimonial knot is, however, distinct from each and all of these relationships.

"To ignore, or even to seek to undermine, this, is to ignore plain reality. Equally plain, and real, is the fact that 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," Justice Shankar said.

He added "Between a husband and wife, who spend their days and nights together, living in a house which, by the dint of their joint effort, they make a home, there exists a bond which defies, and indeed transcends, all known and identifiable parameters. In our country, marital vows are still regarded as inviolable, and marital fidelity is, fortunately, still the norm, profligacy being the exception (even if adultery is no longer a criminal offence). The sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests."

Observing that sex between a wife and a husband is sacred, Justice Shankar said that in no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the "gross senses".

He added that the emotional element of the act of sex, when performed between and wife and husband, is undeniable and that the marital bedroom is inviolable.

"A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of 'rape', in my view, is completely immune to interference", Justice Shankar added.

Thus, while opining that marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined, the Judge said that the marital rape Exception does not wither expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent.

"All that it says is that sexual intercourse and sexual acts – which one may, for the purposes of convenience, refer to, generally, as "sex" – by a husband with his wife, is not rape. By extrapolation, it may be inferred that the impugned Exception also excepts, from the scope of "rape", a situation in which the wife is not willing or does not consent. Any further extrapolation, to imply that the provision encourages, or even sanctions or permits, non-consensual sex by a husband with his wife would, in my opinion, would be completely unwarranted," the Judge added.

Husband has legitimate expectation of sex from wife in marriage

Further observing that the expectation of sex of the husband, with his wife is, therefore, a legitimate expectation, Justice Shankar said that unjustified denial of sexual access, by either spouse to the other, is not, therefore, sanctified or even condoned by law. He said that it may not invite criminal action; it, nonetheless, entitles the spouse, to whom sexual access has been unjustifiably denied, to seek a separation by way of divorce.

Assumption that wife forced to have sex with husband feels same degree of outrage as a woman raped by a stranger is unrealistic

Justice Shankar further added that 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, is not only unjustified, but is ex facie unrealistic.

"Contradistinguish, now, this situation, with a situation of a husband forcing his wife to have sex with him, despite her unwillingness. That what he is doing is wrong, no one can deny. The distinction between the two situations is that, where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part. She may not, therefore, as Lord Hale thought, have cleaved unto the man for life, or surrendered her sexual autonomy to the will of the man. She has, nonetheless, by her decision to marry the man, given, to him, the right to expect meaningful conjugal relations with her. If, therefore, the man, in such a situation, requests her, on a particular occasion, to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage. If the wife refuses, and the husband, nonetheless, has sex with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger. 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". 

"A husband may, on occasion, compel his wife to have sex with him, though she may not be inclined. Can it be said, with even a modicum of propriety, that her experience is the same as that of a woman who is ravaged by a stranger?", Justice Shankar asked.

"This Court cannot, therefore, substitute its view for that of the legislature, and hold, definitively, that treating non- consensual sex by a husband with his wife would not imperil, or threaten, the marital institution. Neither do we have the wherewithal, or the resources, to undertake an incursive study into the issue, nor, for that matter, can we legitimately do so. The consideration and the concern of the legislature are legitimate. The legislation must, ergo, be upheld," he added.

Introducing the concept of husband as rapist antithetical to institution of marriage

"Introducing, into the marital relationship, the possibility of the husband being regarded as the wife's rapist, if he has, on one or more occasion, sex with her without her consent would, in my view, be completely antithetical to the very institution of marriage.The daughter born of such an act would, if the petitioner's submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling.Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute"

Qualitative distinction between sex within marriage and sex between strangers

Accordingly, Justice Shankar opined that given the unquestionable qualitative distinction which exists between sexual relations in a marriage, vis-à-vis sexual relations between strangers, if the legislature in its wisdom, decided to treat non-consensual sex by a man with a woman, where the woman is a stranger, as rape, and non-consensual sex by a husband with his wife, as not rape, it cannot be said that that the distinction violates Article 14 of the Constitution of India.

Justice Shankar was of the opinion that there was not one iota of material as argued by the petitioners' counsel to the effect that an act of sex by a husband with his wife, against her consent is, legally, rape. He added that there was also no judicial pronouncement to the effect that every act of non-consensual sex by man with woman is rape.

"Given this position, I find it, frankly, astonishing that learned Counsel for the petitioners, almost in one voice, castigated the impugned Exception as unconstitutional because it "prevents a wife from prosecuting her husband for committing rape". The closest learned Counsel for the petitioners reach, in so seeking to contend, is in Ms Nundy's submission that, post-Constitution, "the object of rape law (is that) no man should be able to force a woman to have sex with him without her consent". The submissions of Ms Nundy do not, however, enlighten on the source of this "object of rape law", as she would seek to submit," he added.

"Equally may the object of rape law be stated as "non- consensual sex by a woman, at the instance of a man who is not her husband, should be punishable as rape". These are all, however, merely shots in the dark, which do not really aid at arriving at a finding regarding the constitutionality of the impugned Exception. Simply said, it is not open to anyone to contend that a statutory provision is unconstitutional merely because it is not what he feels it should be."

He also added that any legitimacy in the petitioners' claim, therefore, would have to be urged before another forum, particularly the parliament, and not before a writ Court exercising jurisdiction under Article 226 of the Constitution of India.

'Conjugal right' versus 'conjugal expectation'

Justice Shankar held that the impugned Exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent and that all that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist.

"There is a clear intelligible differentia between the two situations, viewed from the point of view of the act, the perpetrator, the victim, the degree of culpability and the degree of outrage that the victim would feel once the act is perpetrated. At the very least, if the legislature has chosen to treat the two situations differently, there is no justification, whatsoever, in my view, for a Constitutional court, exercising jurisdiction under Article 226 of the Constitution, to interfere with the view of the legislature, even if its sensitivities impel it to think otherwise," the Judge added.

The Court was of the view that where the legislature has not used the expression "non-consensual", "forced", or any other expression indicating absence of willingness or consent, in the impugned Exception, that omission has to be accorded its due significance.

He added that the obvious intent of the legislature, in using the omnibus expression "sexual intercourse and sexual acts", without referring to presence, or absence, of consent, is to exclude, from the marital sphere, any allegation of rape.

"Expressed otherwise, what the legislature intends, quite clearly, is that an allegation of rape should find no place in a relationship of marriage. The taint of rape, in other words, according to the legislature, should never discolour a marital relationship between man and woman," the Judge added.

Thus, Justice Shankar said that the marital rape Exception, far from being unconstitutional, serves a laudatory purpose, and is in pre-eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests.

"I also attempted to point out that there was, clearly, an intelligible differentia in the sexual relations, and the sexual equation, between a man and a woman who are not married, and between a man and woman who are married, and sought to elicit submissions from Counsel as to how, in view of the existence of such intelligible differentia – the existence of which Ms. Nundy has, in her written submissions, belatedly conceded – the legislature could be said to have acted unconstitutionally in treating non- consensual sexual acts committed within marriage differently from non-consensual sexual acts committed outside marriage. I have yet to obtain a satisfactory answer," Justice Shankar said at the outset.

Consent and the 'effect doctrine'

Justice Shankar observed that the mere fact that, if the wife, on a particular occasion, was not to grant consent for sex with her husband, and if, nonetheless, the husband was to compel her to have sex, the act committed by him would not qualify as 'rape' within the meaning of sec. 375 cannot be regarded as disregarding, altogether, the wife's right to grant, or refuse, consent.

It does not follow as a direct and inevitable effect of the operation of the impugned Exception, the Judge said.

While reiterating that the impugned Exception does not encourage any husband to force sex on his wife, unmindful of her consent, he added that all that the Exception does is not to label, as 'rape', sexual activities between a husband and wife.

"To contend that, by extreme extrapolation, the effect of this provision would be that a wife would never be able to refuse consent to sex, when her husband demands it, is to visualise an eventuality which even the legislature, at the time of enacting the provision or even in the post-Constitutional period, could not legitimately be said to have envisaged," Justice Shankar said.

While adding that it was admitted that there exists, in each spouse, a legitimate conjugal expectation of meaningful sexual relations with the other, Justice Shankar said:

"The importance of these obligations and expectations are completely undermined, in the submissions advanced by learned Counsel for the petitioners. These obligations, or expectations, do not, needless to say, entitle the husband to coerce or force his wife into sex, against her, or his, will, which learned Counsel for the petitioners erroneously seem to assume to be the implication of the impugned Exception."

"At the same time, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, do constitute a sufficient basis for the legislature to distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it. In view of these several distinguishing features that mark out the relationship between a husband and wife, and its dynamics both within and outside the confines of the bedroom, as sui generis, if the legislature has desired not to characterize husbands as rapists, I completely fail to see how the Court can hold otherwise."

Section 376B of the IPC and Section 198B of the CrPC

The Court noted that sec. 376B does not characterise the act of non-consensual sexual intercourse by the man with the woman, in such a situation, as 'rape' and that it treats it as a distinct and different offence altogether, with a different punishment stipulated for its commission.

"Where marital ties have severed, even if short of an actual divorce, then, absent consent, the husband has no reasonable conjugal expectation of sex with his wife. The unique indicia that apply to a healthy, subsisting and surviving marriage, therefore, have ceased to apply. This, again, is a situation which is qualitatively distinct from a situation of sex between strangers, as also from one of sex between a husband and wife who are cohabiting with one another," he said.

Justice Shankar was of the view that while it cannot be equated with sex between strangers, it is, nonetheless, also not alike to sex between a couple who stay and cohabit together.

"An advisable middle path has, therefore, been carved out by the legislature to cater to such cases, and I see no reason to interfere with the dispensation. Of course, it would be for the court to see, in every case, as to whether the couple is, in fact, "living separately". As the marriage is, nonetheless, subsisting, though the couple is not together, the legislature has chosen to prescribe a suitable lesser punishment for the offence. The exercise of legislative discretion is entirely in order, and, to my mind, the challenge to the vires of the provision has no legs, whatsoever, to stand on," the Judge said.

Furthermore, Justice Shankar said that sec. 198B of CrPC merely sets out the procedure to deal with complaints filed under sec. M 376B and that no occasion, therefore, arises, to strike down the provision.

Accordingly , the Judge concluded that the challenge to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.

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 Rajiv Shakdher of Delhi High Court, who ruled in favour of striking down the marital rape exception, held that sexual assault by the husband on his wife which falls within the fold of sec. 375 of the Indian Penal Code needs to be called out as rape.

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

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

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

Citation: 2022 LiveLaw (Del) 433

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