Exception For Marital Rape Based On An Outdated Concept Of Marriage Presuming Consent : Amicus Curiae Tells Delhi High Court

The Delhi High Court on Thursday 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, provided the wife is above 15 years of age.Senior Advocate Rajshekhar Rao, appearing as amicus curiae in the matter, told a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar that a rape is a rape and that no amount of classification or 'legal jugglery' can alter that reality. Rao said so while arguing that in a situation where the man is not the husband, the woman would be able to prosecute him for rape. However, such a woman is denied the ability to call it a rape if that man was her husband. Rao primarily argued on the aspect of the constitutionality of the exception in as much as the tests prescribed under Article 14 and 21 of the Constitution of India are concerned. He argued that the act of non-consensual sexual intercourse or rape is abhorrent and inherently violative of the basic right to life and liberty of a woman under Article 21 .Rao further argued that such an act is an offence not just against the victim but the society at large and the same violates a woman's right to equality, dignity, bodily integrity, personal and sexual autonomy, bodily and decisional privacy, and reproductive choices. He submitted that the exception decriminalizes such non-consensual intercourse by a husband upon his wife and is, therefore, unconstitutional. On the test of Article 14, Rao said:"Even assuming for a minute, your lordships would consider, the provision satisfies the test of Article 14, is it possible for your lordships to consider that it still violates the mandate of Article 21 and should still be struck down? I am not even getting into the fine debate. Arbitrariness is the factor to decide. Even if your lordships were to find that there is some basis in law for classifying a married or unmarried woman or a married woman with a married woman living separately, should this still not be tested on the touchstone of Article 21 independently?"To this, Justice Hari Shankar orally remarked thus:"We have to say classifying situation of a married couple and unmarried couple independently."He added "Most of the arguments so far, I feel, are more bordering on outrage rather than law. We are looking at it from the point of view of how outrageous it is, an outrage has been committed on a woman and should she be allowed to be called as rape. We are a Court. We are being asked to strike down a provision which creates an exception and by striking down that provision, we are rendering an act an offence which invites minimum 10 years of imprisonment. It is a very very serious thing we are doing. I don't think there is ever any other precedent that I have come to, that such thing has ever been done where an offence has come to being which invites such a serious punishment. If we have to do it, we will do it. But we have to be conscious about the seriousness of what we are doing and not undermine it by making our arguments more on the plight of ladies. The legal part has to be seen also. We have to do it on well-defined parameters in which a statutory provision can be declared as unconstitutional and settled in case after case."It was argued by Rao that the Exception is egregious in as much as it denies a wife the ability to prosecute her husband for the act of 'rape' whereas if the same act were perpetrated by any other male, she would be entitled to do so.Rao also cited the example of a sex-worker, who can prosecute a man for rape if he indulges in sexual intercourse without her consent. The example was given in reference to the bench's earlier query whether a distinction could be made in a relationship where sex is naturally expected."There can be no greater indignity that the law can heap upon a woman than to deny her the right to prosecute for the violation of her bodily integrity, privacy and dignity and that too at the hands of her husband, who she would legitimately expect to receive love and affection from and who would be expected to safeguard her interest. At the risk of repetition, a 'rape is a rape' and a 'rapist remains a rapist' and to suggest that the ability to prosecute an act (which would otherwise be classified as 'rape') as an assault, sexual harassment or outraging her modesty, inter alia, justifies the Exception, is tantamount to the law tuning a blind eye to a gross injustice that has continued for over a century," he added. On the aspect of constitutionality test under Article 14, Rao submitted that the absence of consent is the foundation of the offence of rape under Section 375 and that the decriminalization of an act by a husband, when that act would otherwise constitute rape, is based upon the archaic belief that the very act of marriage presumes consent by the wife for sexual intercourse with the husband. "Apart from being founded on an absolutely...

Exception For Marital Rape Based On An Outdated Concept Of Marriage Presuming Consent : Amicus Curiae Tells Delhi High Court

Nupur Thapliyal

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