The Central government has informed the Delhi High Court that it was yet to devise a stand to be taken on the issue of criminality of marital rape in the nation.
Solicitor General Tushar Mehta, appearing for the Union government, told this to a Special Bench comprising Justice Rajiv Shakdher and Justice C Hari Shankar on Monday.
The High Court was dealing with a bunch of petitions filed in the aftermath of the failure of the Centre to give effect to the recommendations of Justice JS Verma Committee on penalizing marital rape in the country.
“Are there any decisions in the past, where a statute which has said that an act is not an offence has been quashed or has been struck down by a court,” asked the Bench.
Amicus Curiae Senior Advocate Rajshekhar Rao, continuing with his chain of submissions, contended that the differentia as regard the status of a woman to the extent that whether she is married or unmarried, is not legitimate enough to preserve the provision.
He cited from the decision of the Apex Court in the case of Aparna Bhat, which said, “A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”
He drew the attention of the Bench to a paragraph from the judgement which talks about gender violence and the fact that a large number of incidents of violence against women in India often go unreported on account of fear of social ostracization and other factors dissuading women to report any kind of sexual violence, abuse or abhorrent behaviour.
He referred to another paragraph from the judgement, which set out that the courts and law enforcement agencies should act as neutral agencies and make sure that grave offences like rape are not tolerable.
“In the context of a wife, it (rape) seems to be tolerable,” he said.
At this point, Justice Shankar pointed out that such comments were flawed and create problems. “Is that your understanding of the exception to the Section? Does the exception to Section 375 say that in the context of a wife, rape is permissible? The dialogue becomes feud when you make these kind of comments. We have to keep a dispassionate attitude in this. We can’t be seen as already having pre-judged or taken a view one way or the other,” he remarked.
Emphasizing that the foundation of consent is the right to bodily integrity, Rao responded that the fact that the law says that the husband would be prosecuted for offences for having sexual relationship with his wife without consent itself shows that the law does not sanction that conduct.
He stated that the test of whether a provision is discriminatory also has to be seen from the subjective perspective of the person who has been impacted by the law; and in that respect, the statute does not enjoin upon the husband a statutory sanction to engage in non-consensual intercourse with his wife.
He added that as the law dates back to 1860, the historical basis for carving out the provision was common law, considering the social condition of the country.
He further stated that the recommendation of the Verma panel was to remove the provision from the statute; however, the Legislature decided to retain it on the notion that it would tantamount to “unnecessary interference” in the institution of marriage, having the ability to destabilize the institution.
“The object of the Act is to criminalize sexual acts which are done by a man on a woman without her consent. The classification says if a married man does the same act to his wife without her consent, it is not rape. It may be any other offence, but not rape,” he said.
At this juncture, Justice Shankar questioned thus: “If we go into the object of Section 375 as existing today and we feel that there is a differentia existing between an unmarried couple and a married couple and that differentia is sufficient to justify not treating this act in the latter case as rape, does in such a situation court should strike it (the provision) down?
On Rao’s submission that the basis of carving out the exception is the understanding that with marriage comes the legitimate implication that consent for sexual intercourse is given, Justice Shankar remarked that prima facie it is not as though that the exception is carving out a difference between a married woman and an unmarried woman.
“The exception is carving out a difference between an act of sexual intercourse, without the willingness or consent of the woman, been committed within the parameters of a marital relationship and a non-marital relationship… This is not a provision which is only victim oriented. The moment you bring consent you are looking at it only from the point of view of a woman,” he said.
He added that when a man and a woman are not married, the man has no right to expect any kind of sexual congress with the woman. However, when two people are married, there is a “moral, social and legal right” for each partner to expect meaningful and reasonable sexual relationship with the other.
Rao then urged the Bench to consider the issue from the stand point of a wife, who is denied the ability to call an act, which violates her sexually, invades her bodily integrity and privacy and impinges her dignity, as rape.
The Bench, thereafter, asked the Amicus Curiae and the petitioners to apprise the Bench of certain decisions, wherein an act which has not been categorised as an offence by the statute, has been struck down by the court and also to address the arguments from the point of view of Section 511 as well as other reliefs sought in the petition pertaining to striking down of Section 376B the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure.
The Solicitor General, during the beginning of the hearing, submitted that the Centre is yet to devise a stand to be taken on the issue of criminality of marital rape in the nation.