"Marital Rape Exception For Husband Unconstitutional" : AIDWA Moves Supreme Court Challenging Exception To Section 375 IPC

The Supreme Court of India on Friday adjourned a batch of petitions filed against the split verdict passed by a Two-judge Bench of the Delhi High Court on the criminalisation of marital rape.During the hearing, a Bench of Justices Ajay Rastogi and BV Nagarathna said that it would tag all similar matters together and hear on September 16.When asked on what exactly was being challenged, Advocate Karuna Nundy appearing for the petitioner, All India Democratic Women's Association (AIDWA) submitted that a joint certificate was signed by both the Judges of the Delhi High Court certifying the case for appeal to Supreme Court. The appeal is filed against the split verdict delivered by a division bench comprising Justices Rajiv Shakdher and C Harishankar in pleas challenging the marital rape exception under the Indian Penal Code.AIDWA, a 9.6 million members-strong women's organization has filed the appeal challenging the order dated May 11, 2022 passed by the Delhi High Court. The High Court was considering 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.Justice Rajiv Shakdher has held that the exemption to the husband from the offence of marital rape is unconstitutional. Exception 2 of 375, 376B IPC was therefore struck down by him as violative of Article 14.However, Justice C Hari Shankar said that he does not agree with Justice Shakdher. Justice Harisankar has held that Exception 2 to Section 375 does not violate Constitution and that the exception is based on an intelligible differentia. The present appeal for consideration raises this question: whether the marital rape exception to the crime of rape under section 375 (2) is unconstitutional and violative of articles 14, 15, 19 and 21The petition submitted that the impugned provisions are in violation of 14, 15, 19 and 21. Indeed, there is a prima facie case for unconstitutionality of the provisions and the appellant has a good case on merits, it stated. The friction of consent in marital rape, created by exception two of 375 of IPC has caused millions of women to be legally raped. Before the Delhi High Court, married women such her as deserve the right to prosecute their husbands for rape, the petition said. Further, the plea says that the marital rape exception protects husbands from a series of offences. The petition points out that the scope of Section 375 IPC has been expanded after the 2013 amendment to include non-consensual sexual acts beyond penile-vaginal intercourse.As such, a woman raped by her husband in 2022 is worse off than a woman under Lord Hills dictum when he first exempted men from marital rape 300 years ago, the petition remarked. "Lord Hill had explicitly clarified that her husband would not be exempt from prostituting his wife or facilitating forced sex by another".Indeed, since her husband cannot rape his wife, he would necessarily be exempt from section 376 and other provisions of gang rape. This is what was referenced by the Delhi High Court, the plea pointed out. The women raped by their husbands did not get protection under the law available to other rape victims, the appeal plea further highlighted. As per the most recent analysis, the National Family Health Survey data of 2015-2016 said that among married women aged 15 to 19 years, many were victims of sexual violence. Over 83% experienced that current husband and 9% experienced a former husband as the perpetrators.The appeal further reads, "That the effect of the exception to marital rape is a resultant anomaly that the specific actus reus, the harm and indeed the mens rea to commit forced sexual intercourse remains punished. The husband who has committed an act of forced sexual intercourse, might be prosecuted under a lesser provision that does not seek to regulate forced sexual intercourse in the first place. If a woman's complaint of marital rape is registered under Section 323, 354, 498 A of the IPC, vital evidence of rape which would have otherwise been collected by the police would not be collected with without which even offenses under section 323 IPC becomes difficult to prove."Since the IPC is a pre-constitution legation, there is no presumption of constitutionality, the plea further argued. This has been affirmed by the Constitution benches of the Supreme Court in Joseph Shine vs union of India and Navtej Singh Johar vs union of India. "The fact that Parliament chose not to amend the MRE despite recommendations of the Verma committee report is merely a neutral fact that can have no bearing on the Supreme Court's assessment of its constitutionality and the provision continues to have no presumption of constitutionality."Also, AIDWA stated that the constitutional vires of the provision in the appeal have been questioned by various high courts at different points.With a view to press for interim relief, the appeal also highlighted the need...

"Marital Rape Exception For Husband Unconstitutional" : AIDWA Moves Supreme Court Challenging Exception To Section 375 IPC

Rintu Mariam Biju

Tags