The Delhi High Court on Thursday asked whether in the absence of any provision to enable a married woman to prosecute her husband for forceful sexual intercourse without her consent in itself is sufficient to strike down the exception to Section 375 of the Indian Penal Code which takes away sexual intercourse by a man with his own wife, the wife being above fifteen years of age, from the ambit of offence of rape.
The Division Bench comprising Justice Rajiv Shakdher and Justice C. Hari Shankar has begun hearing on a batch of petitions seeking criminalization of marital rape in the country.
The Amicus Curiae Senior Advocate Rajshekhar Rao, who is supporting striking down of the exception to Section 375, while continuing with his chain of submissions, submitted: “The effect of the Exception is to render the woman’s consent immaterial inasmuch as she cannot prosecute her husband for having non-consensual intercourse with her.
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 indignity, privacy and dignity, and that too at the hands of her husband who she legitimately expects to receive love and affection from.”
The other submissions made by him were as follows-
– The foundational basis of Section 375 is consent, and the punishment therein is prescribed for an act done without consent. The act of non-consensual intercourse is abhorrent and violative of the basic right to life and liberty guaranteed under Article 21. It causes a deep psychological, physical and emotional trauma, thereby degrading the very soul of the victim.
It also violates a woman’s right to equality and equal status.
-Relying on various judicial decisions wherein it has been observed that a rape is a rape and a “rapist remains a rapist”, he submitted that no amount of classification or legal jugglery can alter that reality. In that background, the Exception is more egregious in the sense that if it was any other man the woman would have a right to prosecute that person for the act of rape, but since it’s her husband, she cannot.
This is a case where the provision on the face of it is manifestly arbitrary as there can be no basis for such a distinction.
-Citing an example of a sex worker who is socially perceived to be as unchaste and of easy virtue, but are still entitled the right to decline consent and are entitled to prosecute for rape, he stressed upon the fact that a married woman cannot be put at a lower pedestal to deny her the ability to call a rape a rape.
He added that the question which needs to be considered is whether there exists any legal justification to say that denial to a married woman of the ability to prosecute is the denial of the ability to prosecute that offence as rape and treat it as any other offence.
The exception, he submitted, creates a situation wherein a woman is being told that you have a better remedy against a stranger as opposed to her husband.
He argued striking down of the Exception will not amount to creation of a new offence:
(a) It will merely remove an exemption that has been created by way of legislative fiction,
which it finds 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 behaviour is being criminalised.”
(b) There will be no violation of Article 20(1) as striking down will operate prospectively.
(c) 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.
(d) 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 this court, particularly in view of the wider ambit of Article 226 as compared
to Article 32.
Justice Hari Shankar observed that most of the arguments which have been addressed so far stresses upon outrage that has been committed upon a woman rather than law. He asked the parties to look at the legal ramifications also as the court, in the exercise of writ jurisdiction, can strike down a provision only if all the ingredients necessary to call an act an offence are met.
“We’ve been 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 a minimum punishment of ten years imprisonment. It is a very very serious thing we are doing….. We must be conscious of the seriousness of what we are doing and not undermine it by just making our arguments more on showing just the plight of the ladies in such situation. See the legal part of it also very seriously,” he orally remarked.
In this light, he asked the Amicus Curiae to apprise the Bench as to whether the absence of any provision to enable a married woman to prosecute her husband for sexual intercourse without her consent enough to strike down the Exception.
Solicitor General Tushar Mehta, today, informed the Bench that the government is considering to take a constructive approach to the matter and that in this direction, the government has invited suggestions from all State Governments, Chief Justice of India, Chief Justices of all High Courts, Bar Council of India and others to comprehensively amend the criminal laws.
The Bench will continue hearing these matters tomorrow.
The petitioners in these matters, represented by Advocate Karuna Nundy, include NGOs RIT Foundation and All India Democratic Women’s Association and two individuals, who have challenged an exception to Section 375 of the Indian Penal Code, on the ground that it excludes sexual intercourse by a man with his own wife, the wife being above fifteen years of age, from the offence of rape.