Last week, MDO published how Men’s Rights Activists filed an urgent application to conclude arguments in the ongoing Marital Rape PIL at the Delhi High Court bench comprising Justice Rajiv Shakdher and Justice C Hari Shankar heard Advocate Karuna Nundy, petitioner in the matter.
The hearing of petitions have challenged the exception to Section 375 of the Indian Penal Code, which exempts marital rape from the offence of rape.
Earlier, 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, analysed or studied.
The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals. They seeking to strike down the exception in the Indian law that does not consider sexual intercourse with a minor wife, above 15 years of age, as rape.
Arguments By Karuna Nundy
During the course of the hearing today, Karuna Nundy who was appearing for one of the petitioners RIT Foundation took the Court through the written submissions filed by her. She argued,
Indeed, slapping your wife or killing her in bedroom is specifically criminalised, but not raping her.
Nundy made three-fold submissions before the Court:
- There is no presumption of constitutionality of a pre-constitutional provision
- Striking down the marital rape exception will not create a new offence
- The marital rape exception and impugned provisions fail to pass the constitutional tests of Art. 14, 15, 19 and 21. It was added that it is the constitutional court explicit mandate under Art. 13 to set it aside, without awaiting legislative action
Nundy heavily relied on the Supreme Court judgment in the case of Independent Thought v. Union of India wherein the Court read down exception 2 to Section 375 (which defines rape) of the IPC (as amended by the Criminal Law (Amendment) Act, 2013) which allowed such a sexual act.
The Court had held,
On a combined reading of C.R. v. UK and Eisenstadt v. Baird it is quite clear that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist. Similarly, a rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault.
Nundy also argued that there is a very small proportion of marital rape cases are reported amongst which false cases and convictions are even smaller. She submitted,
Married women hesitate to report such incidents even to their lady health visitors. While all criminal justice suffers false negatives i.e. acquittal of the guilty and false negatives or conviction of the innocent, there is no evidence that false cases concerning rape and sexual assault in cases where the assaulted and accused have a prior sexual relationship are misused more than other criminal laws.
On the aspect of marital rape exception being violative of Art. 14, Nundy argued that the provision creates classification on the basis of marital status of the victims like unmarried women, live in or divorced partners, married women and married but separated women.
She added that such a classification has no reasonable nexus with the object of the statute to criminalize rape which is to prevent and punish non consensual sexual intercourse.
It was also argued that the provision suffers for manifest arbitrariness as it provides immunity to a man for having sex with his wife but not to a man forcibly having sex with a woman who is not his wife.
Furthermore, Nundy also argued that the marital rape exception violates the woman’s right to dignity, liberty, personal and sexual autonomy guaranteed under Art. 21. She added that the provision is also violative of a married woman’s right to self expression under Art. 19(1)(a).
Delhi High Court
During the hearing, the bench discussed the possible legislative reasons for the exception to Section 375 IPC.
The legislature in Section 375 – we must also appreciate the reason why this provision is still remaining on the statute book despite so many Verma Committee Commission and law commission reports. I don’t think we should be carried away by what Lord Hales said. We have gone much beyond what he said.
One possible reason why it is in the statute book may be because of the manner in which rape is defined in Section 375. It defines rape in a very wide manner. It says even a single instance of unwilling sex with opposite party is enough to call it rape. Let us take a hypothetical situation where there is a couple who is newly married. The husband one day wants to have conjugal relations with the wife. Wife says no. Husband says if you don’t allow me, I am leaving the house and going. I’ll see you tomorrow morning. If we are to knock off this exception, this is rape.
One argument is raised that there is no intelligible differentia between a situation where the couple is married and where the couple is not married. On that, with great respect, I’m not really in agreement. There is a reason for that. If a boy and a girl are not married, howsoever close their relationship may be, boyfriend or girlfriend or Live- in, neither of them has any right to expect sexual congress with the other. The law doesn’t recognise any right.
Therefore, there is an absolute right on each party to say I will not have sex with you. If the other party agrees, it’s a matter of accommodation. In a marital relationship, there is a qualitative difference. There is an expectation of a conjugal relationship of both parties.
Continuing further, Justice Shankar said,
When a party gets married, each has an expectation and to an extent a right also. Because if it is denied, it can lead to civil consequences also, it can lead to divorce. So there is an expectation and at least a social and legal right to expect normal sexual relations with your partner which doesn’t exist if there is no marriage.
There is a qualitative difference in a case where the parties are married and where they are not married and I feel prima facie that this qualitative difference has a part to play in that exception been engraved into sec. 375.
Justice Hari Shankar, while commenting prima facie that marital rape must be punished, added that there is a qualitative difference between cases where the parties are married and where they are not married and that prima facie, this qualitative difference might have a part to play in the exception that been added into Section 375 IPC. He quoted,
Marital rape according to me should be punished, prima facie. There should be no doubt about it. Women’s sexual autonomy, bodily integrity, right to say no, there can’t be a compromise.
We are not here on whether marital rapes should be punished, we are on the question as to whether in such situation this man should be held guilty of rape.
Justice Hari Shankar also said,
If the legislature feels that where parties are married, we should not categorize this as rape as it would be categorised in a case where parties are unmarried. If the parties are unmarried and the man says I want to have it, then it is a matter of force.
You are not exercising any right which is socially or legally in any manner given to you. Here the man is exercising what he believes to be the conjugal right. If the legislature has thought that in a marital relationship, because of qualitative difference of the relationship, we should not categorize this as rape, I am not on the question whether it should be punished or not.
Justice C Hari Shankar said that the issue was whether to strike out the exception under Section 375 IPC. He remarked,
There is no concept of marital rape in India. The moment we use this expression marital rape, it’s something that I had exceptions to on the very first day and I continue to do so. The moment you call it rape, you come into sec. 375 IPC. If it is rape, it has to be punished, marital, non-marital or any kind.
This repeated use of the expression marital rape is something which according to me obfuscates the actual issue before us. What we are concerned with here is the exception to sec. 375. The legislature has excepted from sec. 375 a situation where parties are married. We have to see whether there is a case made for striking out this exception or not. That is the issue.
Furthermore, he added that the question as to whether the provision should be struck down as unconstitutional or not, there are well-settled principles by the Supreme Court. He said that in an ideal situation, the bench should have been told about the situations in which the provision has to be struck down.
Justice Shankar told Advocate Karuna Nundy who was appearing for one of the petitioners.
Instead of that, we are given a lot of literature on UK, US and various other jurisdictions. As I understand, none of those is really relevant. At the highest, it can have some persuasive value. We cannot strike down a provision merely because it has been struck down in another jurisdiction. We have our own jurisprudence, we have our own legal system, we have our own constitution and well-settled principles laying down when a statutory provision can be struck down.
The matter will now be heard tomorrow again. Special thanks to Livelaw for their detailed live reporting in this case.
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