"Marital Rape Exception For Husband Unconstitutional" : AIDWA Moves Supreme Court Challenging Exception To Section 375 IPC

When asked on what exactly was being challenged, Advocate Karuna Nundy appearing for the petitioner, All India Democratic Women's Association (AIDWA) submitted that a joint certificate was signed by both the Judges of the Delhi High Court certifying the case for appeal to Supreme Court. The appeal is filed against the split verdict delivered by a division bench comprising Justices Rajiv Shakdher and C Harishankar in pleas challenging the marital rape exception under the Indian Penal Code.

AIDWA, a 9.6 million members-strong women's organization has filed the appeal challenging the order dated May 11, 2022 passed by the Delhi High Court. The High Court was considering 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.

Justice Rajiv Shakdher has held that the exemption to the husband from the offence of marital rape is unconstitutional. Exception 2 of 375, 376B IPC was therefore struck down by him as violative of Article 14.

However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia.

The present appeal for consideration raises this question: whether the marital rape exception to the crime of rape under section 375 (2) is unconstitutional and violative of articles 14, 15, 19 and 21

The petition submitted that the impugned provisions are in violation of 14, 15, 19 and 21. Indeed, there is a prima facie case for unconstitutionality of the provisions and the appellant has a good case on merits, it stated.

The friction of consent in marital rape, created by exception two of 375 of IPC has caused millions of women to be legally raped. Before the Delhi High Court, married women such her as deserve the right to prosecute their husbands for rape, the petition said.

Further, the plea says that the marital rape exception protects husbands from a series of offences. The petition points out that the scope of Section 375 IPC has been expanded after the 2013 amendment to include non-consensual sexual acts beyond penile-vaginal intercourse.

As such, a woman raped by her husband in 2022 is worse off than a woman under Lord Hills dictum when he first exempted men from marital rape 300 years ago, the petition remarked. "Lord Hill had explicitly clarified that her husband would not be exempt from prostituting his wife or facilitating forced sex by another".

Indeed, since her husband cannot rape his wife, he would necessarily be exempt from section 376 and other provisions of gang rape. This is what was referenced by the Delhi High Court, the plea pointed out. The women raped by their husbands did not get protection under the law available to other rape victims, the appeal plea further highlighted.

As per the most recent analysis, the National Family Health Survey data of 2015-2016 said that among married women aged 15 to 19 years, many were victims of sexual violence. Over 83% experienced that current husband and 9% experienced a former husband as the perpetrators.

The appeal further reads,

"That the effect of the exception to marital rape is a resultant anomaly that the specific actus reus, the harm and indeed the mens rea to commit forced sexual intercourse remains punished. The husband who has committed an act of forced sexual intercourse, might be prosecuted under a lesser provision that does not seek to regulate forced sexual intercourse in the first place. If a woman's complaint of marital rape is registered under Section 323, 354, 498 A of the IPC, vital evidence of rape which would have otherwise been collected by the police would not be collected with without which even offenses under section 323 IPC becomes difficult to prove."

Since the IPC is a pre-constitution legation, there is no presumption of constitutionality, the plea further argued. This has been affirmed by the Constitution benches of the Supreme Court in Joseph Shine vs union of India and Navtej Singh Johar vs union of India.

"The fact that Parliament chose not to amend the MRE despite recommendations of the Verma committee report is merely a neutral fact that can have no bearing on the Supreme Court's assessment of its constitutionality and the provision continues to have no presumption of constitutionality."

Also, AIDWA stated that the constitutional vires of the provision in the appeal have been questioned by various high courts at different points.

With a view to press for interim relief, the appeal also highlighted the need to provide urgent relief to women who are forced to have non-consensual sex with their husbands with almost no avenues of legal recourse close to them. The time period required to reach a decision in the appeal will see wives across the country continue to suffer impunity their husbands have from raping them, the plea said.

The existence of the MRE means many wives are, every day are suffering immeasurable physical, mental and emotional injury and the husbands have no consequences to face.

"The Appellant submits that justice requires for married women to be allowed to prosecute their husbands under Section 375 of the IPC."

In SG Vombatkere vs Union of India, the Supreme Court had stayed the registration of new FIRs, the continuation of investigations and other coercive measures for sedition under section 124 of IPC. A direction of similar nature could be passed in this petition, the appeal prayed. On these grounds, the appeal prayed to stay section 375 (2) pertaining to marital rape.

The petition also seeks to expunge certain remarks made by the Delhi High Court. On the trauma suffered by victims of rape, the High Court had held that women do not feel same sense of outrage when forced to have intercourse with their husbands as with strangers. The Court had stated forced sexual intercourse in a marriage is in the nature of marital disagreement.

"….remarks in this vein maybe interpreted as belittling the trauma of the victims of marital abuse and seen as a kind of endorsement of the view that forceful sexual intercourse in a marriage is not a big deal."

Case Title: AIDWA vs Union Of India, Hridaya Nest of Family Harmony vs UOI, Diary No. 16226/2022