Striking Down Marital Rape Exception Will Result In Creation Of New Offence: Justice C Hari Shankar Differs With Justice Shakdher

Delivering a split verdict in pleas seeking criminalisation of marital rape, Justice C Hari Shankar of Delhi High Court, who ruled against striking down the marital rape exception (exception 2 to Section 375 of the Indian Penal Code), held that striking down the same would result in creation of an offence.

Justice Shankar thus did not agree with the observations made by Justice Shakdher who listed out five broad reasons as to why striking down the marital rape exception would not result in creation of a new offence.

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

The judge was responding to the petitioners' argument who submitted that while removal of the marital rape Exception may enlarge the class of offenders liable to be prosecuted for an offence under sec. 375, it would not create a new offence.

While the petitioners heavily relied on the Supreme Court judgment in Independent Thought case to bring home their point, Justice Shankar observed that any attempt to treat the said decision as an authority, even collaterally, on the issue of constitutionality of the impugned Exception to the extent it applies to a marriage between adults, whether directly or by employing the "inversion test" or any other test.

The Judge said that doing so would not only be thoroughly misguided, but would also amount to a conscious disregard of the words of caution and clarification used by the Supreme Court itself.

"The Supreme Court was, in fact, merely harmonising the stipulation of the age of the wife, in the impugned Exception, as 15 years and above, with the main part of Section 375, as well as the provisions of the POCSO Act and the PCMA, which envisaged the act to be an offence when committed with the woman of 18 years of age and below. This was an obvious disharmony, which the Supreme Court, by reading down the impugned Exception, remedied," the Judge said.

The Judge said further that if a provision is found to be unconstitutional, the Court may strike it down provided, by doing so, it is not creating an offence.

If, by its judgement, the Court creates an offence, there is an absolute proscription, even if the provision is otherwise unconstitutional, the Judge added.

He also said that the Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgements which would result in an act, otherwise not an offence, being rendered an offence.

"The effect of designating an act as a criminal offence, on all who may commit that act, cannot be forgotten. For that reason, extensive consultation with all stakeholders, especially given the fact that India is a country of diverse cultures, religions, beliefs and social and societal realities, is absolutely necessary. We cannot undertake that exercise, and our oath does not authorise us to do so, either," Justice Shankar said.

Another reason as to why the Court cannot create an offence, according to Justice Shankar, was because a Court cannot legislatively stipulate the punishment for the offence.

"In the present case, for example, there is no stipulated punishment for an act of non-consensual sex, by a husband with his wife, as it is does not amount to 'rape' and, consequently, Section 376 would not apply to it. If the impugned Exception was to be struck down, we would make, ipso facto, the punishments envisaged by Section 376, applicable to such a husband, where the legislature never intended these punishments to apply to him. We, therefore, would be doing something which was never within the contemplation of the legislature, which may be even worse, jurisprudentially, than judicial legislation itself. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence," he added.

Justice Shankar said that the Court cannot strike down a provision where, by doing so, an offence would come into being, and leave the legislature to think of the appropriate punishment that would visit the offender.

What happens to cases which come up in the interregnum?, he asked.

Justice Shankar thus observed:

"As things stand today, if a wife lodges an FIR against her husband for having raped her, the husband need not contest the case that would result, or prove his innocence; he may, straightaway, seek recourse to Section 482 of the Cr PC and seek that the FIR be quashed, for the simple reason that, even if the act alleged had been committed by him, it is, statutorily, not rape. Any allegation of rape by a husband of his wife is, therefore, anathema to the IPC, and directly contrary to the impugned Exception."

"Were, however, we to agree with the petitioners, and strike down the impugned Exception and, thereafter, if a wife was to lodge an FIR against her husband for having raped her, Section 482 would, ordinarily, not be available to the husband, who would have to contest the trial and establish his innocence, as the act that he committed would, with the evisceration of the impugned Exception, become an offence of rape. We would, therefore, be designating the act of the husband, vis-à-vis his wife, as rape, where, earlier, it was not."

Thus, he said that by eviscerating the impugned Exception, the Court would be altering, altogether, the stipulation regarding the perpetrator of the offence of 'rape', by covering all men thereunder, save and except those who would be entitled to the benefit of the first Exception in Section 375, which applies to medical procedures.

"This also follows from the fact, already noted by me hereinabove, that, by striking down the impugned Exception, this Court would be denying, to the husband, the benefit of Section 482 of the Cr PC which, as the statutory position stands today, is available to him, in view of the impugned Exception," Justice Shankar observed.

Observing further that the impugned Exception does not exempt a category of offenders from the purview of sec. 375 who, by eviscerating the Exception, the Court would be bringing within the four corners of the provision, Justice Shankar said:

"Rather, by striking down the impugned Exception, we would be pronouncing that an act of non-consensual sex between a husband and a wife is rape, where, as the statutory position stands now, it is not."

"As, by allowing the petitioners' pleas, we would be creating an offence, I am of the opinion that, irrespective of and in addition to all other contentions advanced by the petitioner, and all other considerations that arise in this case, it is impossible for this Court to grant the reliefs sought by the petitioners, as it would result in creation of an offence, which is completely proscribed in law."

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 CrPC, have to fail.

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

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

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

Click here to read/download the judgment