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Marital Rape: Amicus Curiae in Delhi High Court Supports Striking Down of Exception to Section 375 IPC

Team SoOLEGAL 13 Jan 2022 3:13pm

Marital Rape: Amicus Curiae in Delhi High Court Supports Striking Down of Exception to Section 375 IPC

NEW DELHI: The Delhi High Court started hearing a batch of petitions on Wednesday challenging an exemption to Section 375 of the Indian Penal Code, which exempts violent sexual intercourse by a man with his own wife from the crime of rape if with wife is beyond the age of 15.

Senior Advocate Rajshekhar Rao, sitting as an amicus curiae in the case, briefed a bench of Justice Rajiv Shakdher and Justice C Hari Shankar as follows:
“…a woman is better off, as a matter of law, when she is assaulted by a stranger. But when her loved one assaults her, the law says, she is not entitled to call that act rape.”

Rao went on to say that, in the context of rape, while the Courts have repeatedly said that it de – humanizes a woman’s entire existence, the issue that has to be raised is whether the Court should sit by and watch a provision that assists in the potential of a woman being de – humanized every day.

“…everyday this act remains in the books, there is a section in the population which is denied the opportunity to call a rape as rape,” Rao submitted.

He added, “No amount of telling a woman that she can prosecute the husband under 10 other provisions of law, an undo the inability that she faces because she is violated by the person who is supposed to her companion, her husband, her partner, a person who is in the fiduciary capacity.”

Rao said that after reading sections 276(2) and 376(C) of the IPC, the law places a premium on relationships and lays higher obligation on someone in a fiduciary relationship.

Section 376(2), for example, mandates heavier penalties for a male who rapes a woman while in fiduciary relationship with her. Similarly, Section 376(C) makes rape by a man in authority a crime.

Rao also provided an example of splitting a couple’s relationship into three stages: courting, engagement and separation.

“The same couple at three stages of the relationship. During the course of courtship, if the man, forces himself on the woman, he violates the law. He violates the law at all stages but at the stage of Section 375 and 376, he clearly is guilty of an offence. Consider a situation, courtship is translated into engagement. There is a further formalization of the relationship. Yet if the man forces himself upon the same girl, he still commits an offense. Five minutes after marriage, the act is not an offense. The woman doesn’t have recourse to prosecute the man for the act. She has the ability to prosecute him under various other provisions of the law but she cannot call it a rape anymore,” Rao argued.

“The next stage is, after a few years, she decides she is no longer interested in the relationship but doesn’t want to opt – out as yet, and tries and live separately for some time. But doesn’t have the means to step out of the house, sleeps on the same bed but has made it clear that they are living separately. Section 376(B) gives her the right suddenly again to prosecute for the act of rape but it slightly reduced to the act done before marriage.”

In response to Rao’s argument on trust and fiduciary relationships, Justice Hari Shankar inquired how such a fiduciary relationship differed from any other relationship requiring trust between two people, such as teacher and student, family and so on.

“For example, trust in a case where chowkidar in school, teacher or student etc., these are one category of trust. Can you say that its something which is similar to trust existing between husband and wife in a sexual relationship? You will have to answer this,” Justice Hari Shankar orally remarked.

There is no expectation of sexual interactions in circumstances of fiduciary relationship such as teacher – student, according to Justice Hari Shankar.

“We are concerned with whether this act should be punished as rape. It’s not that the legislature was of the view that it shouldn’t be criminally punished. But legislature had taken a decision that it shouldn’t be treated as rape. If we are to strike it down, we have to come into a qualitative decision, that this act should additionally be categorized as rape…if we can’t equate these two situations, then to what extent we can strike it down…We will need your assistance in this,” the judge continued.

Aside from the amicus curiae arguments, the court heard from two interveners, argued before the Court that the Parliament, after deliberating and taking into account the broader view of Indian Society, legislation, and punishment, kept exception 2 to Section 375 of the IPC.

Reading from his written note before the bench, Kapoor stated that the requirement of a legislative Act is simply an element for determining legislative authority.

Other reasons advanced on Kapoor’s side include:

Ø  In a judicial separation, both partners are physically and mentally separated from one another. From the date of separation, the wife’s consent to a sexual relationship is withdrawn. As a result, it cannot be claimed that preserving the exception constitutes a breach of Article 14, which allows for fair categorization based on linkage with the goal pursued.

Ø  If the exception is overturned, the husband will be in worse position that in the section 376(B) case. Section 376(B) would subject such a husband to harsher punishment. If the exception is struck down, husband would be worse off than husband falling under section 376(B) since he cannot get benefits under probation of offenders Act which is available under Section 376(B).

Ø  It cannot be said that under Domestic Violence Act the punishment provided is not sufficient, and therefore exception 2 should be struck down, and husband should suffer the same punishment as in the case of other grave offenses under Section 375 of the IPC.

Hearing the aforesaid, Justice Shakdher remarked thus “Problem here is when two people live under the same roof as husband wife, the offence of rape is firewalled because of the exception. If there was no such relationship, he would have been amenable to prosecution as any other person.”

Ritwik Bisaria, an engineer by profession, also submitted submissions on behalf of men welfare trust. He claimed that the petitioners’ citations of different international and local judgments could not be upheld, identifying key passages from them.

On the issue of legality, Bisaria stated that in Article 15, which bans discrimination based on three criteria, because marital status is not one of them, an exception based on it cannot be deemed unconstitutional.

“In Article 14, there is ample protection under other laws available to wife. Equality within the same law is not mandated under Article 14,” he added.

During the hearing, the bench also stated that it has designated senior advocate Rebecca john as an amicus curiae in the cause and that officials orders will be issued in that regard. The hearing will be resumed tomorrow.

The Delhi Government contended yesterday that the exemption to Section 375 of the IPC dealing to the non – criminalization of marital rape does not render a married woman helpless as a result of her husband’s forced sexual intercourse. It further claimed that the exemption does not require a wife to have sexual relations with her husband and that in such cases, she has the right to divorce as well as other legal remedies.

Previously, two of the petitioners, the RTI foundation and the 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 the right to self – expression guaranteed by the Indian Constitution.


Tagged: Delhi High Court   Section 375 IPC   Marital Rape   Indian Penal Code   Advocate Rajshekhar Rao  
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