Marital Rape: Are There Precedents of Courts Striking Down a Provision To Create An Offence? Delhi High Court Asks

Team SoOLEGAL 18 Jan 2022 3:19pm

Marital Rape: Are There Precedents of Courts Striking Down a Provision To Create An Offence? Delhi High Court Asks

NEW DELHI: The Delhi High Court resumed hearings on Monday on a batch of petitions 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.

A bench of Justice Rajiv Shakdher and Justice C Hari Shankar questioned Senior Advocate Rajshekhar Rao, who was participating as amicus curiae in the case, if there was any precedence of the Court striking down a legislative requirement to criminalize a conduct.

Justice Hari Shankar stated orally today that the arguing attorneys have not yet provided any Supreme Court precedent stating the basis on which legislation might be deemed unconstitutional, particularly in the context of a statute dealing with a criminal offence.

“Are there any decisions in the past where the statute which has said that an act is not an offence, has been quashed or struck down by the Court, either Supreme Court or High Court? We have cases like Section 377 where the act was an offence which has been struck down. I want to know whether we have any precedent in the past where we have some guidelines as to how courts have looked at such a situation where the statute does not categorize it as a particular offence and it has been struck down by a Court,” Justice Hari Shankar remarked.

Justice Shakdher, on the other side, presented a similar question, saying: “The arguments which are to be developed further are that if there is no precedent, does it mean that every court evolves its own precedent? And there are not one but several cases where Supreme Court has struck down even constitutional provisions, what to talk about the statutes which deal with civil obligations. So when you are looking at case law, you have to look on that case law as well? If the SC has empowered you to strike down a constitutional provisions, are we emasculated of the power to deal with a criminal offence?”

During today’s hearing, Rao began by citing a Supreme Court decision named Aparna Bhat V. State of Madhya Pradesh to underline the consequences of sexual activities, including rape, on a woman, particularly a wife.

Justice Hari Shankar said about this: “Does this exception to Section 375 say that in the context of wife, rape is permissible? It, first of all, says it’s not rape. So it can never say that in the context of wife, rape is permissible.”

“You have to keep in mind; we have to keep a dispassionate view in this. We can’t be seen as already having prejudged or taken a view one way or the other. Let us not have these caveats. I don’t see how the provision says in the context of wife, rape is permissible.”

Justice Hari Shankar asked, when the exemption to section 375 proclaimed that sexual intercourse between a husband and wife was not rape, could it be seen as providing protection from the rape offence.

Rao pointed out that, notwithstanding the Justice Verma Committee’s proposal to delete the clause, the legislature elected to keep in it the law book. He stated that the legislative committee’s position was reaffirmed in the Center’s previous affidavit, and that it would amount to unwarranted meddling in the institution of marriage, and so had the potential to undermine such an institution.

Responding to the aforesaid, Justice Hari Shankar said: “Let us assume that the ground on which, as you say, that this exception was engrafted on the basis of a theory which existed 260 years ago…Let’s assume that it was the basis of which it was enacted. Now you also said that after Justice Verma’s report, the matter went to the parliamentary committee and it said that we want to retain it to stabilize the institution of marriage. Assume that the court finds that both these considerations are not sufficient to justify the exception. Or even otherwise, if we go into the object of section 375 as an existing enactment today and we feel that there is in between a situation which arises between us unmarried couple and a married couple, there is a differentia and that differentia is sufficient to justify the act in latter’s case as rape, let us assume, the Court comes to a conclusion but not on the reason of institution of marriage or hale’s exception etc. in such a situation, is it that the court should strike it down even when the court does have a rational basis or there is an intelligence differentia in the two situations and this distinction have a rationale with the object sought to be achieved, assume this, is the Court still to go by the parliamentary committee, Hale’s exception and then decide the matter?”

Rao stated that the categorization standard mentioned in Article 14 must be fulfilled for the court to deem the distinction legitimate. He went on to say that the next question to be answered would be whether the Act violated any other sections of Part 3 of the Constitution, Including Article 21.

“The question would be that what could be the legitimate reason for distinguishing a married woman or segregating married woman as a class and unmarried woman. When you separate, you have indicated your consent to not remain in the marriage. Whether legally or otherwise, you message is loud and clear,” Rao submitted.

To this, Justice Hari Shankar responded: “It is not as to how I see it, whatever I am saying it prima facie, and with deeper consideration, I might take a different view. Prima facie, it is not as to exception carving out a difference between married and unmarried woman. The exception is carving out a difference between an act of sexual intercourse being without willingness or consent of woman being committed within parameters of a marital relationship and a non – marital relationship.”

“If we keep looking at it only from the point of view of the woman, then we are really not appreciating…The section says this act is not rape. In any criminal statute, there are four ingredients. There is a perpetrator; there is a victim, act and a punishment. This is not a provision that is only victim – oriented. It looks at the act. Therefore this act has got the man committing the act; it has got the act itself which is the act of sexual intercourse without willingness of the woman. Of course, it will be without the willingness of woman because she is the victim. This whole cocoon, the exception says this act committed within the marital sphere shall not be treated as rape. Whenever we o on saying that its distinguishing a woman who is not married and a woman who is a married or that the entire section is based on the premise of consent, the moment you bring consent, again you looking at it from the point of view of the woman. So it’s not an act which creates an exception in case of woman of a particular type or in a particular relation, it is an exception which creates a particular type of act, an act committed in a particular scenario, that has been excepted.”

“What I felt was when a man and a woman are not married, howsoever close their relationship was, and the man has no right to except any kind of sexual congress with the woman. You may be the closest but you have no right. But when they are married, there is a moral, social and legal right also, legally sanctified right of each partner to expect some kind of meaningful and reasonable sexual relations with the other. Of course, no force and no compulsion. So it’s not my case that when they do it unwillingly, it shouldn’t be condoned. It’s not the case here. But given that expectation, if the legislature thought than an act of sex without willingness of wife, should not be made rape, calling it rape has several connotations but it carries with it the punishment and entire section 375 goes with it. So if the legislature felt that this act, if it is committed in a married situation, where there is actually an obligation also of each party to permit the other party to have meaningful conjugal relations sanctified by law and morality, if it felt that it should not be treated as rape and if we are to say that it has to be treated as rape and nothing else, we have to make out a case that the consideration which would have weighed with the legislature of the difference between a relationship between married and unmarried situation, is either totally irrelevant or it is insufficient to make this distinction. And looked at from the purview of the act.”

Centre Seeks Time for Consultations
When the hearing began today, Solicitor General of India Tushar Mehta requested fair time from the Bench to develop the Union Government’s position.

“Considering that it is a 2015 matter, if your lordships can grant us a reasonable time. This might need a little consultation etc.” he said.

Justice Shakdher refused to postpone the whole hearing, claiming that the bench is currently in the middle of discussions. The Judge stated that the bench will hear the other lawyers for the time being, and that the union government will answer later, following its consultation procedure.

Previously, the center notified the court that it is conducting a consultation process on the subject and has solicited input from stakeholders.

Previously, Rao had argued before the Court that, while the statute does not expressly state that a husband has the right to sexually assault or abuse his wife, the marital rape exemption implies that a man can rape his wife and avoid prosecution for rape.

Rao further contended that ‘a rape is a rape’ and that no amount of categorization or ‘legal juggling’ could change that fact.

The Delhi Government, on the other hand, argued that the exemption to Section 375 of the IPC dealing to the non – criminalization of marital rape did 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.

Earlier, two of the petitioners, the RIT Foundation and the All India Democratic Women’s Association (AIDWA), told the Court that the marital rape exception in 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.

Previously, Senior Advocate Colin Gonsalves, who was representing one of the petitioners, said that marital rape is the most common type of sexual assault against women that is never recorded, investigated, or studied.

RIT Foundation, All India Democratic Women’s Association, and two individuals have filed petitions against marital rape.

Tagged: Delhi High Court   Marital Rape   Indian penal Code   Justice Rajiv Shakdher   Justice C Hari Shankar  
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