By Parth Parikh

Despite widespread scholarly opinion endorsing the unconstitutionality of the marital rape exception within the IPC, as well as its deplorability in a egalitarian society, neither the Judiciary nor the Legislature have yet wielded their constitutional powers to eradicate it. Regardless of how problematic or reactionary they may seem, it is pertinent as per the learned wisdom of the Greek and Roman philosophers to ‘listen to the other side’ (Audi alteram partem or audiatur et altera pars). This article series, therefore, without endorsing or supporting, aims to summarize and critically analyze the legal arguments present against the removal of the marital rape exception. Keeping in mind the enormity of the socio-political discourse in the public ecosphere, along with the long list of alleged stakeholders, this two-part series will limit itself to the arguments raised in the case before the Delhi high Court titled RIT Foundation v. Union of India. 

1. INTRODUCTION

Section 375 of the Indian Penal Code,1860 (IPC) contains the constitutive elements of the offence of ‘rape’. It is a comparatively progressive section, being heavily amended by the Criminal Law (Amendment) Act, 2013 (Amendment), which was based on the Justice Verma Committee report formed in reaction to the public outcry post the Nirbhaya case in 2012. Among other amendments, it widened the definition of rape beyond solely vaginal penetration and included other ‘non-penetrative’ acts as well like ‘appl[ying] his mouth’ to a sexual organ. It also explicitly held the lack of physical resistance by a woman shall, in absence of additional evidence, be insufficient in determining her consent towards the sexual act. 

However, despite the suggestion of the Justice Verma Committee, the Amendment did not remove Section 375 Exception 2 IPC which exempted ‘sexual acts or sexual intercourse’ by a man with his wife, provided she is not below the age of fifteen, from the purview of rape. Though this age criterion was later interpreted as eighteen by the Supreme Court in Independent Thought v. Union of India, the controversial exception itself was not struck down. 

However, all was not lost. 

On 02.03.2022, a Division Bench of the Hon’ble Delhi High Court, consisting of Justice Rajiv Shakdher and Justice Hari Shankar, reserved its judgement on a plea challenging the constitutional validity of the provision of the marital rape exception and other provisions of the (IPC) and Code of Criminal Procedure, 1973 (CrPC). 

1. OBJECTIVE 

Ever since the aforementioned case, titled RIT Foundation v. UOI and Ors, shot into the media limelight in late 2021, and even prior to that, there has been a plethora of literature, including on this platform, endorsing the arguments in favor of removing the marital rape exception captured in Section 375 Exception 2 IPC. 

A perusal of such media by an individual disconnected from the social framework of our society (imagine an alien like PK in Rajkumar Hirani’s PK) would observe the debate as a ‘no-brainer’ and decide in favor of removing the exception. However, if such is indeed the case, then why have our judicial and legislative bodies been hesitant, till now, to do so? This question is even more relevant considering the exception, arguably being a form of our colonial legacy, was struck down by England’s House of Lords in the case of R v R back in 1991.

In this context, this article is the first part of the Two-part series that aims to scrutinize the primary arguments made against the removal of this exception before the Hon’ble Delhi High Court, which prima facie blatantly violates the fundamental rights of married women granted under Article 14 and 21 of the Constitution. The first part of this series shall summarize all the arguments made against the removal of the exception, primarily led by Advocate J Sai Deepak arguing on behalf of the Men’s Welfare Trust, an intervenor in the case. The second part will provide a critical analysis of these claims, and their rebuttals by the opposing party.

1. ARGUMENTS MADE BY THE MEN’S WELFARE TRUST

 3.1 Issue of jurisdiction 

The first argument made is regarding the jurisdiction of the Hon’ble Delhi High Court to entertain the present petition and grant the claimed relief. The doctrine of Separation of Power, though not expressly engrafted, has been interpreted as  apparent from the scheme of the Constitution (para 20). Under the doctrine, the power of making the law is primarily in the domain of the elected legislature, whereas the judiciary’s role is limited to interpreting the law. There are deviations from this scheme as the judiciary has taken upon the role of making the law due to various contextual reasons. Such behaviour is termed ‘judicial activism’ and is usually undertaken in cases of an urgent need to protect the interests of a particular group. An example of this can be the ‘Vishaka Guidelines’ constructed by the Hon’ble Supreme Court in Vishaka v. State of Rajasthan (1997) to address and prevent sexual harassment of women at workplaces.

The argument against the Court hearing the petition is that if the Court grants the relief claimed and strikes down the exception, it ‘enlarges the scope of an offence’ which is outside the purview of its constitutional powers. Reliance for this argument is placed upon the decision of the Supreme Court in Saregama India Limited vs. Next Radio Limited (2021) wherein it held that:

“the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language.”

The intervenors argue that the legislature treats ‘marriage’ as a relevant criteria both in the CrPC and the IPC as offences relating to marriage are dealt separately within the IPC under Chapter XX, and rape comes under Chapter XVI ‘Of Offences Affecting the Human Body”. Even Section 376B labels ‘rape’ by a husband of his wife during their separation, whether decreed or otherwise, as “sexual intercourse without consent”. Advocate J Sai Deepak argues that ‘the issue of consent cannot be divorced from the issue of context [of marriage]’. Therefore, for the court to strike down the marital rape exception would be beyond its mandate under the constitution.

3.2 Adherence to Article 14 as per evolved jurisprudence

The second argument is in response to the claim that the exception violates the Right to Equality of married women granted under Article 14 of the Constitution.

Article 14 of the Constitution grants ‘Equality before the law’ and states :

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

However, this right, similar to other fundamental rights, is not absolute and is subject to reasonable restrictions, i.e. situations wherein different placed persons may be treated differently (think of income tax slabs taxing richer individuals a higher percentage of their annual income). Therefore, a two step “classification test” was laid down by the Supreme Court in the case of Anwar Ali Sarkar to determine violations of the guarantee of equal treatment under Article 14. It required that for a law to pass an Article 14 scrutiny, there must exist:

1) an intelligible differentia between the individuals or groups that are subjected to differential treatment;

2) a rational nexus between that differentia and the State’s purpose in framing the law.

However, over time certain drawbacks of the classification test came to the attention of the Court, and thereby it expanded the test for scrutiny to include the ‘doctrine of manifest arbitrariness’. In Shayara Bano v. Union of India, Justice Nariman elucidated on the doctrine as a facet of Article 14 and held:

“101. …Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle.”

In this context of judicial interpretation surrounding Article 14 of the Indian Constitution , the intervenors argue that there exists an intelligible differentia between unmarried women and married women as there is ample proof of marriage receiving special treatment within the criminal legislation. Both Section 376B IPC and Section 198B CrPC, which have also been challenged by the petitioner herein, highlight the ‘existence of specific and special treatment in the legislation [on] the basis… existence of marriage’.

Therefore, there is a consistent differential treatment meted out by the criminal legislation in the context of an existing [or past] marriage, which establishes the presence of intelligible differentia and lack of any manifest arbitrariness in the exception.

It is pertinent to note that the orders of the Court on the Hon’ble Delhi High Court website do not provide any substantive information regarding the arguments advanced and based on the information available through third party reporters, there is no argument made regarding the rational nexus of this alleged differentia with the purpose of the law. This point will also be addressed in the Part- II of the series.

Apart from this jurisdictional challenge and constitutional rebuttal, certain additional arguments and observations have also been made before the Court regarding the complexity of the issue.

3.3 Other supporting arguments 

3.3.1 Creating an ‘anomalous situation’

One, it was highlighted that the punishment under Section 376B IPC is lesser than that under Section 375; ‘shall not be less than two years but may extend to seven years’ for the former and not less than ten years but may extend to life imprisonment for the latter. As a result, striking down Section 375 Exception 2 would create an ‘anomalous situation’ wherein the present husband would face a much harsher punishment as compared to a former husband for the same ‘act’ (whether to call it rape or, according to the IPC, non-consensual sexual intercourse).

 3.3.2 Absence v. inadequacy of remedy available

Two, regarding the issue of remedy in context of sexual abuse by the spouse, the intervenors argue that Section 3(a) of the Domestic Violence Act (DV), which defines ‘domestic violence’ includes spousal sexual abuse within its ambit.

Sexual abuse has further been described in Explanation I of the section as:

“(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”

Therefore, spousal sexual abuse would fall within the meaning of domestic violence as per the DV, and hence appropriate remedies would be available within the Act. Further, Section 19(2) DV empowers the Magistrate to impose any additional conditions or directions necessary “to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person”.

The argument is made, as a counter to the claim that remedies under the DV Act are primarily civil in nature, that under Section 19(2) FIRs are registered under Section 498A and 376B IPC based on the Domestic Incident Report (DIR) if the situation requires.. Further, Section 376B constitutes an offence when the wife is “living separately, whether under a decree of separation or otherwise”. Therefore, it is argued that the Magistrate may direct the registration of an FIR under Section 376B even if the parties live in the same house, if the history of the relationship based on DIR shows a ‘de-facto’ separation.

Advocate J Sai Deepak concludes this argument by stating:

“It is not a question of absence of remedy, it is a question of perception with respect to the adequacy of remedies, which again does not fall under the realm of unconstitutionality”.

1. CONCLUSION

It is pertinent to note that these arguments have been explained above in a manner so as to be accessible and understandable to the general populace, both in terms of absence of legal jargon and bare essential reference to theoretical frameworks of the complex legal issues addressed (namely the doctrine of ‘Separation of Power’ and the tests for Article 14 of the Constitution).

Part II of this series will address the counter arguments and a critical analysis of the contentions of the intervenors. Hopefully prior to its publication, we will have access to a well-reasoned judgment of the Court on this issue, more so because other  High Courts, like the Hon’ble Gujarat High Court, hearing similar challenges have deferred their proceedings and await the Delhi High Court’s decision.

Parth Parikh is a 4th-year undergraduate student pursuing B.B.A.-LL.B. (Hons.) from Jindal Global Law School. 
Image Credits – theleaflet.in