Section 498A IPC Not A Remedy Against Marital Rape: Amicus Curiae Rebecca John To Delhi High Court

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.

Senior Advocate Rebecca John appearing as amicus curiae in the matter told a bench of Justice Rajiv Shakdher and Justice C Hari Shankar that the retention of exception 2 of Sec. 375 of IPC will not be constitutional.

John also submitted that availability of other provisions in various legislations including  Sections 498A, 304B of IPC, Domestic Violence Act and other civil remedies, are insufficient to deal with the offence of rape under sec. 375, as regards to a wife alleging rape by her husband.

Adding that there is no express commonality between the said provisions and Section 375 of IPC, she argued that while certain elements of the base offence may exist, however, every offence must be separately prosecuted.

"Therefore to argue that wives have remedies under sec. 498A, under Domestic Violence Act domestic and such like Acts, is not a tenable argument. Of course, they exist but for separate offences, which may be added in a given case to an aggravated offence," John submits.

She added "That depends on the facts of individual case. The ingredients of sec. 375 are separate and there is no reason why sec. 498A can be used as a substitute for  Section 375. It can be used in addition but it's not a substitute."

John was submitting on the argument put forth by the Delhi Government saying 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 was argued by the Delhi Government 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.

Non-Criminalization Of Marital Rape Doesn't Compel Wife To Have Sexual Intercourse; Remedy Of Divorce Available: Delhi Govt Tells High Court

It was therefore John's argument that the mere fact that there are other provisions available in the statute books cannot mean that marital rape should be exempted from Section 375.

During the course of arguments today, John also referred to the judgment delivered by a single judge bench of Gujarat High Court titled Nimeshbhai Bharatbhai Desai v. State of Gujarat wherein it was observed that the total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband's privilege, but rather a violent act and an injustice that must be criminalized.

She also referred to another development wherein a division bench of Gujarat High Court in 2021 issued notice on a petition challenging the constitutionality of Exception 2 to Section 375 of the IPC.

Further referring to the twin test as provided under Article 14 of the Constitution of India, John took the Court through the observations given by the Apex Court in the two judgments, namely Navtej Johar v. Union of India (2018) and State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association (2021).

In the latter, the Supreme Court had observed "The over-emphasis on the 'objective' of the law, instead of its 'effect' - particularly when the objective is ostensible - was observed not to further the true meaning of the equality clauses under the Indian Constitution."

In the said context, John argued that while the Court will invoke the twin test for examining the Constitutionality of exception 2, however, the observations of the Apex Court on the said issue given in the two decisions must also be taken into consideration.

Referring to India's international obligations, John submitted that it is a well-settled position that international conventions and laws can be read with domestic law to ensure that they are in sync with the domestic laws.

"The same may be done in the case of sec. 375 exception 2," John argued.

Concluding her submissions, John added that while she has received a lot of hate emails over the past few days because of her views on the issue of marital rape, she submitted that ultimately the issue will have to be adjudicated on the test of constitutionality.

On the other hand, reiterating the earlier request, Solicitor General of India Tushar Mehta today requested the Court to grant some further time to the Centre to commence arguments in the matter.

"Your lordships are not just deciding the Constitutional validity of a provision. It may not be looked from a microscopic angle. The dignity of a woman is at stake. There are family issues," Mehta submitted.

He submitted that since there will be several considerations which would weigh with the Centre, it will not be possible for it to respond immediately particularly when there was no imminent threat that something is going to happen to someone.

"We would need reasonable time to respond," he added.

To this, Justice Shakdher said:

"Our concern is that this is not going to end here. Whichever party is aggrieved.... Because of the importance...the concerned party may carry it to the next court. If it is in a legislative mode, it's going to end there."

"The Government may have its own approach. But to keep it hanging beyond a particular period loses meaning."

Accordingly, the Court asked the SGI to come back with submissions after a period of 10 days.

Previously, John had argued that the removal of exception 2 from Section 375 of the Indian Penal Code will not amount to the creation of a new offence.

She had emphasized that 'consent' is an underlying condition in the exceptions to Section 375 IPC. John sought to establish that 'sexual acts' when done 'with consent' are not an offence. However, when the same sexual acts are done "without a woman's consent", that becomes the fundamental foundational basis of invoking Section 375 IPC.

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