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The Delhi high court on Wednesday, May 11, gave a split verdict in a case related to the criminalisation of marital rape.
The verdict was delivered by a division bench of Justices Rajiv Shakdher and C. Hari Shankar. The case will now be dealt with by the Supreme Court.
“I concur with my esteemed brother in his decision to grant certificate of leave to appeal to the Supreme Court in the present matter as it involves substantial questions of law, of which the Supreme Court is presently in seisin,” the court said.
Justice Shakdher’s observations
Justice Shakdher ruled in favour of striking down the exception – that is, Exception 2 to Section 375 of the Indian Penal Code (IPC) which says that sexual intercourse by a man with his own wife is not rape.
These were the 15 major observations made by him:
1. To understand whether a classification based on the relationship between the offender and victim is constitutionally viable, one would have to examine whether the classification has an intelligible differentia (IA) with the object which is sought to be achieved.
2. It cannot be doubted that there is a differentia between married, separated and unmarried couples. However, what needs to be established once the differentia is accepted is: whether the differentia between married and unmarried couples has a rational nexus with the object, which the main provision seeks to achieve; that is, protecting a woman from being subjected to a sexual act against her will or her consent.
3. Marital Rape Exception (MRE) does not meet the nexus test as it grants impunity to an offender based on his relationship with the victim. In other words, it grants impunity qua an act which would otherwise fall within the offence of rape under the main provision [i.e., Section 375] only for the reason it is committed within the bounds of marriage.
4. The classification, in his opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is “real rape” and that the same act within marriage is anything else but rape.
5. For a woman who is violated by her husband by being subjected to the vilest form of sexual abuse (i.e., rape), it is no answer to say that the law provides her with other remedies. When marriage is a tyranny, the state cannot have a plausible legitimate interest in saving it.
“In every sense, MRE, in my view, violates the equality clause contained in Article 14 of the constitution. Article 14 of the constitution not only guarantees that the state shall not deny to any person equality before the law, but also guarantees that every person within the territory of India will have equal protection of the laws. MRE, with one stroke, deprives nearly one half of the population of equal protection of the laws. The classification between married and unmarried women in the context of MRE (and what is observed hereinabove) is, without doubt, unreasonable,” Justice Shakhder said.
6. He also observed that if one were to apply the aforesaid test, the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation, but is also manifestly unjust. As such, he called marital rape exception oppressive.
7. He also observed that while sex workers have been invested with the power to say ‘no’, by law, a married woman has not.
“In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim,” Justice Sakdher said. “A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease or she is, herself, unwell, finds no space in the present framework of rape law. Thus the rape law as it stands at present is completely skewed insofar as married women are concerned.”
8. The judge also emphasised the impact of the MRE, saying, “The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and the [Criminal Procedure] Code, the same regime does not kick-in if the complainant is a married woman.”
9. Justice Shakdher observed that the offence of rape and injury caused remains the same, irrespective of who the offender is and therefore, the MRE is violative of Article 21 of the constitution.
“The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanising. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding the fact that the rapist is in a marital relationship with the victim,” he said.
10. He also observed that women’s right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty, which encompasses her right to protect her physical and mental being.
11. Justice Shakdher held that non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred.
Articles 15 and 19(1)(a) of the constitution
12. The judge also cited Articles 15 and 19(1)(a) of the constitution, observed that the continuance of the MRE on the statute violates the former since it triggers discrimination against women based on their marital status. As a result, it impairs and nullifies their sexual agency with regard to coitus and their right to procreate or abstain from procreation. More fundamentally, according to Justice Shakdher, women’s power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses, is completely eroded.
13. Likewise, the MRE, he said, is also violative of Article 19(1)(a) as it violates the guarantee given by the constitution concerning freedom of expression, amongst others, to married women who are citizens of this country. The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy.
14. With regard to conjugal expectations, he observed that these expectations, even though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife, disregarding circumstances and her physical and mental condition.
‘Non-consensual sexual intercourse is not labelled as ‘rape’ to save the institution of marriage’
15. Justice Shakdher further observed that the marital bond between individuals is the edifice of the familial structure. However, the edifice can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other’s yearning for physical and mental autonomy.
Sexual assault by the husband on his wife, which falls within the fold of Section 375 of the IPC, he observed, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender.
“The fact that certain ingredients of the offence covered under Section 375 are found present in other provisions of the IPC concerning hurt (Section 319, read with Sections 321 and 323), grievous hurt (Section 320, read with Section 322 and 325) or cruelty (Section 498A) does not provide a satisfactory answer as to why a sexual assault, which is synonymous with rape, should not be labelled as rape when the offence is committed on an adult married woman by her husband,” Justice Shakdher observed.
Justice Shankar’s observations
Justice Shankar, meanwhile, ruled against striking down the MRE.
The following were the nine observations made by him:
1. The impugned exception chooses to treat sex, and sexual acts, within a surviving and subsisting marriage differently from sex and sexual acts between a man and woman who are unmarried. It extends this distinction holding that, within marital sexual relations, no “rape”, as statutorily envisioned by Section 375, can be said to occur.
2. He was firmly of the view that in treating sexual acts between a husband and wife, whether consensual or non-consensual, differently from non-consensual sexual acts between a man and woman not bound to each other by marriage, the legislature cannot be said to have acted unconstitutionally.
3. The distinction is based on IA having a rational nexus to the object sought to be achieved by the impugned exception, which fulfils not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed in Part III of the constitution.
4. It is not open to courts to examine whether the object of the legislation is sufficient to justify the differentia. A writ court, venturing into that territory, would clearly be exceeding the boundaries of its authority under Article 226.
5. Once the legislature adopts the view that there is an object ‘X’ that it seeks to achieve (protection of the marital institution), which is legal, and that, in order to achieve that object, it seeks to distinguish between A and B, if the distinction thus drawn between A and B (on the basis of marriage) has a rational nexus with object ‘X’, the legislation is, ipso facto, intra vires (within the powers). As per his view, the court cannot proceed to enquire any further into the matter. The court cannot tell the legislature, “Though you feel that treating non-consensual sex between husband and wife as rape would threaten the marital institution, we do not think so.”
6. He stated that the section nowhere disallows a wife from saying no to sexual intercourse, the language of the section plainly states that sexual acts and sexual intercourse, by a man with his wife, are not rape.
“What may make, or mar, a marriage, cannot be predicted by us. We cannot return a value judgement that, in regarding the removal, from the marital demographic, any suggestion of ‘rape’, as necessary for preservation and protection of the institution of marriage, and is in its best interests, the legislature has erred. That, in my view, would amount to no less than our sitting in appeal over the wisdom of the democratically elected legislature, which is completely and irrevocably proscribed by law,” Justice Shankar said.
7. Justice Shankar observed that arbitrariness, as an abstract concept, cannot constitute the basis for striking down a legislative provision as unconstitutional, or as violative of Article 14. It has to be remembered that Article 14, after all, pertains to the fundamental right to equality.
8. He said that if a provision is to be struck down as violative of Article 14 on the ground that it is arbitrary, therefore, the arbitrariness must be in relation to the manner in which it creates a distinction between persons or things who appear, otherwise, to be similarly situated.
“What may appear to be arbitrary to one may not appear arbitrary to another – the present case being a stellar example. There are no cut and dry indicia of arbitrariness. If arbitrariness alone is to be the basis, the legislation would become subject to the vagaries of judicial thinking,” the judge said.
Challenge related to section 376B (which deals with sexual intercourse between husband and wife in separation)
9. Justice Shankar observed that sexual intercourse between a separated couple cannot be equated with sex between strangers or to a couple in marriages cohabiting together. Therefore, a middle path has been carved out by the legislature and there is no reason to interfere with this dispensation.
“Of course, it would be for the court to see, in every case, as to whether the couple is, in fact, “living separately”. As the marriage is, nonetheless, subsisting, though the couple is not together, the legislature has chosen to prescribe a suitable lesser punishment for the offence,” Justice Shankar said.
He said that the exercise of legislative discretion is entirely in order, and, to his mind, the challenge to the vires of the provision has no legs, whatsoever, to stand on.