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

The Delhi High Court on Monday 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.A bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar asked Senior Advocate Rajshekhar Rao, appearing as amicus curiae in the matter, as to whether there is any precedent of Court striking down a statutory provision to criminalize an act. Justice Hari Shankar today orally remarked that the arguing lawyers have not so far cited any precedent laid down by the Supreme Court which states the principles on which a statute can be declared as unconstitutional especially 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 sec. 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 hand, posed a similar query by remarking thus:"The arguments which are to be developed further is 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 provision, are we emasculated of the power to deal with a criminal offence?"During the course of the hearing today, Rao began by relying on a Supreme Court judgment titled Aparna Bhat v. State of Madhya Pradesh to highlight the aspect of the impact of sexual acts including rape on a woman, especially in the context of a wife. On this, Justice Hari Shankar remarked:"Does the exception to Section 375 says 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 exception to Section 375 declared that sexual intercourse by a husband with wife as not rape and hence, could it be seen as giving protection from the offence of rape.Rao pointed out that while the recommendations of Justice Verma Committee's report was to remove the said provision, the legislature decided to retain it in the statute book. He said that the stand of the parliamentary committee was repeated in the Centre's erstwhile affidavit, that it would tantamount to unnecessary interference in the institution of marriage, and would therefore have the ability to destroy 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 sec. 375 as an existing enactment today and we feel that there is in between a situation which arises between an 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?"To this, Rao responded that for the Court to find the distinction as rational, the classification test enumerated under Article 14 has to be satisfied. He added the next question to be determined thereafter would be to see if the statute is then violative of other provisions of Part III of the Constitution, mainly Article 21. "The question would be...

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

Nupur Thapliyal

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