Exception For Marital Rape Based On An Outdated Concept Of Marriage Presuming Consent : Amicus Curiae Tells Delhi High Court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 outdated and obsolete notion of the concept of marriage and the status of a wife within it, such a presumption of consent is inconsistent with applicable law. Any suggestion to the contrary is manifestly arbitrary and unreasonable and constitutes a gross denial of the equal protection of laws to married women," Rao submitted.

Therefore, according to Rao, the classification based on marital status creates an anomalous situation giving married women lesser protection against non-consensual sexual intercourse by their own husbands as against strangers and that it also results in lesser protection for them than cohabitees and live-in partners.

"This not only defeats the State's purported aim of giving the institution of marriage a higher footing but in fact, militates against the notion that such classification, in some way, protects it. This is particularly disconcerting when, in the same breath, the IPC itself recognizes that the act being perpetrated by a person in a position of trust i.e. in Section 376(2) (f) or in a fiduciary capacity i.e. in Section 376C, is more egregious than one done by a stranger," Rao added.

Hearing the aforesaid, Justice Shakdher orally remarked:

"If it is a rape, it is serious. Therefore, to say we will exclude a certain circumstance because of inter parties relationship is problematic. Therefore according to me, you gave a good example of a sex worker. Because if you were to take into account circumstances, what better defence to say, that this is a person who is used to entertaining people. She is the lady of the night as they say. She is used to entertaining people and therefore she should also have been in the exception. A circumstance such as that should have also been there in the exception. We have chosen not to do it. Our courts have gone very far to say that she can say No at any stage. Can a wife be put at a lower pedestal or be less empowered by law?"

On this, Advocate Karuna Nundy appearing for two of the petitioners submitted that in the case of sex worker also there is an expectation of sexual relations.

However, Justice Hari Shankar was of the view that:

"You are again trying to equate expectation of sex in a relationship between a customer and a sex worker with the expectations of sex in a married relationship."

"This entire argument Mr. Rao, I must still say I'm not very satisfied with the dispassionate of it...You are again proceeding with looking at it from the point of view of the lady involved. Let us understand here that if we are creating an offence, then there is a man who is going to be punished for it. The lady has suffered no doubt and we have to definitely empathize with the highest degree but we also have to keep in mind the consequences that a man will be punished with 10 years."

"If we are going to strike down the exception, we are going to make rape applicable to the entire Section 375. You are going on this whole concept of should it be punished. I am again saying, Section 375 expression proviso does not say it should not be punished. The question is should it be punished as rape given the definition under Section 375? If we are to say yes, we have to keep in mind we are saying yes by striking down a legislative provision. And if we are to say that, we have to say every ingredient of Section 375 has to apply even if the parties are married to each other."

"If the legislature has thought that where parties are married, if the act of sex takes place and the only grievance of lady is that I was not willing on that occasion...it's not even a question of consent. If the legislature felt such a case given a marital bond between parties shouldn't be categorized as rape and should not be subjected to punishment which rape invites, is it something which is so unconstitutional that we in the exercise of Article 226 can strike it down?"

Continuing with the submissions, Rao further submitted that while an unmarried woman, in the event of rape, can sue a man for Section 376 along with other alternative offences, a married woman can prosecute her husband only for the alternative offences but not under Section 376.

"Is there any legal justification that denial of married woman of the ability to prosecute that offence as rape and call it cruelty, sexual abuse etc…why are we shying away from recognizing that there can be sexual abuse under contours of IPC against wife by the husband? And the exception does exactly that. It avoids the elephant in the room. It shuns an extremely important aspect of human dignity under the carpet," Rao argued.

He added "The basis then can only be one, that a married woman's consent is irrelevant. No amount of telling her…this creates a situation where the law says you have a better remedy against  a third party as opposed to your husband for the same act."

"Where does the law say as a husband you have the right to assault your wife for an offence which is assault but in fact is rape? If in 2022, we still shy away from calling rape a rape merely because of relationship between parties then perhaps Article 21 has not moved as far as the way we thought it would."

Further arguments put forth by Rao were:

- Striking down of exception will merely remove an exemption that has been created by way of legislative fiction, which is found discriminatory and unconstitutional.

- The acts that will become punishable as 'rape' after removal are already punishable as other offences under the IPC and no new behavior is being criminalized.

- There will be no violation of Article 20(1) as striking down will operate prospectively.

- Courts have previously expanded the application of existing offences by revoking exemptions granted to a class or by removing differences in sentences for different classes.

- Judicial review of legislation on the anvil of fundamental rights does not violate separation of powers and is consistent with it. It is, in fact, a constitutional obligation cast upon the High court, particularly in view of the wider ambit of Article 226 as compared to Article 32.

The matter will now be heard tomorrow.

Essentially, the Central Government today informed the Court that it is undertaking a consultative process on the issue. Solicitor General of India Tushar Mehta today said that the Centre is considering a "constructive approach" in the matter.

Standing Counsel Monika Arora further added that Central Government has called for suggestions from various stakeholders, including Chief Ministers of all States and Chief Justice of India, regarding the amendment to the criminal laws.

Yesterday, Rao had also supported the criminalization of the act. He classified the relationship of a couple into three stages; courtship, engagement and separation; and argued that it is irrational that whereas five minutes before the marriage the act is a criminal offence, 5 minutes after marriage it is condonable.

On the other hand, the Delhi Government submitted that the exception to Section 375 of IPC pertaining to non-criminalization of marital rape does not leave a married woman remediless pursuant to forced sexual intercourse by her husband. It also submitted that the exception does not compel a wife to have sexual intercourse with the husband and that the remedy of divorce, including other remedies under the criminal law, is available to her in such situations.

Earlier, two of the petitioners namely RIT Foundation and 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 her right to self expression enshrined under the Constitution of India.

Previously, Senior Advocate Colin Gonsalves appearing for one of the petitioners argued that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.

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