In the process of the Delhi High Court on 10 January 2022 continuing the hearing of petititons on Marital Rape, there is unclarity on it's present legal stand and ambiguity in the several contentions lately raised.

At the outset of the hearings, the main contention raised was on challenging the exemption - II of S.375 of the Indian Penal Code (IPC). Besides, the state failure to take the necessary steps to criminalize the offense of Marital Rape was elucidated.

In the past decades as well there have been various attempts to remove the exceptions and yet have not been achieved. It is a long awaited reform since 1991 though there have been mixed reviews about it in the past and in the current.

According to the first submission by the counsel Ms. Karuna Nundy on 10 January 2022, for the petitioners, All India Democratic Women's Association and RIT Foundation, ignited the extinguished flare of 2017 decision in Independent Thought v. The Union of India.

Precisely, there were three limbs of submission by Ms. Nundy lately:

1. There is no presumption of the constitutionality of pre-constitutional provisions.
2. Striking down a Marital Rape Exemption ('MRE'), will not create a new offense.
3. While the 'MRE' and impugned provisions violated most of the Fundamental Rights including Art. 14, 15(1), 19(1)(a), and 21, they failed to pass the Constitutional muster. Moreover, it is the Art. 13, giving the explicit mandate to the court to set aside the same without awaiting legislative action.

Why Section 498A IPC not a remedy against the Marital Rape?

On 24 January, the one of the two amicus curiae Senior Advocate Rebecca John in the matter told a court that retention of the exemption - II of S.375 IPC is not constitutional and hence will not create a new offense. Previously two days back as well she argued the same.

She submitted that existing provisions in various legislations including S.498A, S.304B of IPC, Domestic Violence Act and other civil remedies are not sufficient to deal with the offense of rape concerning wife alleging rape by her husband.

Additionally, she argued that there is no "commonality" between the said provisions and S.375 of IPC, though certain elements of the "base offense" may exist, but every offense must be separately prosecuted in consideration of its nature and degree. Hence, the above mentioned provisions are not "substitute" or act as an alternative to S.375 of IPC.

Subsequently, she referred to Nimeshbhai Bharatbhai Desai v. State of Gujarat of 2018 in which it was concluded that the "complete abolition of statutory" exemption is the first necessary step to teach societies that dehumanization treatment of the women is not tolerated and marital rape is not a "husband privilege" instead it is a violent act and a injustice that must be criminalized.

She further referred to the "twin tests" of Article 14 of the Constitution of India through observations of the two judgments, Navtej Johar v. Union of India (2018), and the State of Tamil Nadu v. National South India River Interlinking Agriculturist Association (2021) to uphold criminalization.

In the latter case-law, the court clearly stated that there must not be "over-emphasis of objective" of the law, instead of its effect and particularly when the objective is ostensibly to be incorrect. Moreover, that is not the "true meaning of the equality clauses" under the Indian Constitution.

Sr.Adv. John further argued that while the court has to take the twin test for examining the 'constitutionality of exception - II' yet the observations of the Apex Court on the said issue given in the 'two preceding decisions must also be taken into consideration.'

Intelligible Differentia

On 28 January Delhi High Court continued the hearings, Advocate J Sai Deepak, representing the Men Welfare Trust (MWT), concluded on the rejoinder submissions in opposition to the criminalization of marital rape. This expresses not to declare Exemption - II of the S.375 as unconstitutional on the sole point in order to protect "the civil liberty" of the husband.

Mr. Counsel relied on the judgment of Government of Andhra Pradesh & others v. Smt. P. Lakshmi Devi in 2008, especially the para 73 observation by the two SC Judges bench:

"However, though while considering economic or most other legislation the Court gives great latitude to the legislature when adjudging its constitutionality, a very different approach has to be adopted by the Court when the question of civil liberties and the fundamental rights under Part III of the Constitution arise."

Hence, it infringes the civil liberties of the husband, "creating a new offense" or expands the provisions of an existing offense under Article 226 of the Constitution. And as the court cannot change the dynamics or objectives of the law as intended by the legislature. Besides, he argues that there is an existing law to deal with the act of "spousal sexual violence" and MWT was not against the legal recognition of it.

Further, he submitted that consent goes handy with the context, and marriage and marriage institutions are "the basis for such intelligible differentia" from the fact that the petitioners have challenged exception - II of S.375, S.376B of IPC and S.198B of C.r.P.C. It is the ipso facto that they were "aware of the existence of specific and special treatment" in the legislation, "the basis" of which is the existence of marriage.

Thus the exception cannot be held to be "manifestly arbitrariness" and they have established a case against themselves that there is an "intelligible differentia." Therefore, "marriage" forms the basis of such differences and the exception cannot be invalidated on the ground of violation of Article 14 of the Constitution as submitted earlier by the petitioner.

Similar contention was covered in the judgment of:

• Mohd. Hanif Quareshi v. State of Bihar,
• Beeru v. State of NCT,
• State of MP v. Rakesh Kohli,
• Bombay Dyeing & Co v. Bombay Environmental Action group,
• State of Bihar v. Bihar Distillery,
• Census Commissioner v. R Krishnamurthy and
• Harakchand Banthia v. UOI.

Additionally, Mr. Counsel also relied on the 172nd Law Commission Report of 2002 and "the Parliamentary Committee Report dealing with S.375 of IPC" and international position, specifically U.K law on the subject.

Still Pardoning Marital Rape?

On 31 January 2022, Adv.Karuna Nundy talked about the moral rights of married womens. That is to refuse to adjure the forcible sexual intercourse and in fact it is about the rights of a wife to clearly say no and making it stand that marriage does not give a license to "ignore consent."

The initial argument Adv. Nundy this time submitted that the Constitution of India is "transformative" and further the citizens are transforming from it. And in the absence of it women would never have a universal suffrage that are the right to vote, to worship, to evade sexual harassment at workplace and against triple talaq.

As a result the imperative need to adjudicate the exemption - II of the S.375, is about "equal dignity and respect" to womens in India and more so ever to achieve the constitutional goal.

Subsequently, she relied on the decision of the Supreme Court in Nevada Properties Pvt Ltd v. State of Maharashtra (2019), applying the "inversion test" evolved by the Supreme court to determine the ratio of a decision.

According to it, the court first must look upon the proposition of law and then include the word in the proposition to reverse its meaning to answer whether a decision is a precedent for that proposition or not. In case the answer is positive, the case is not a decision for that proportion and if negative, the case is a precedent for the other propositions and ought to be for other propositions as well.

Furthermore, she applied for this test in the present case that since if the observations are to be reversed here, the conclusions could not have been reached as it did.

However, she was questioned by Justice Shankar on two aspects, first whether the court will create a new offense in case exception - II of S.375 is diminished.

Second, for S.482 C.r.P.C if an F.I.R is registered against husband by wife for rape under S.376. Subsequently she admits he is her husband, then there can't be an offense under S.375 and 376. Consequently, accused can go under S.482 C.r.P.C or even Article 226 of the Constitution stating that there is no offense and ask to quash it. But as a current proposition to strike down the exception and make it an offense for husband, then he cannot go under S.482 or Article 226 as because it's now an offense. So, the act which he can get it quashed currently, cannot have "relief if it's struck down." Thus, the question arises whether the court is creating a new offense?

Adv. Karuna Nundy replied that she will be addressing the questions in a nuanced manner in her submissions.

Moreover, Justice Shanker clarified that exception:

II of S.375 is based on "qualitative difference" in terms of relationship between the parties and not certainly on the "fiction of consent."

In concluding the research note or article, the hearing on petitions are still going on and the answer is yet to come. As mentioned in the beginning there have been various attempts to criminalize marital rape but not successful opposing from the several contentions raised and precedents referred.

I firmly believe that contrasting arguments are equally and decisively crucial as to sustain the basic features of the Constitution. There have been several instances where the filed F.I.Rs are false or there is misuse of the existing laws and making it more stringent and criminalizing it will not heavily work in the favor of both parties.

However, I further believe that misuse of law is not a ground to not bring a law that anyhow helps the majority of the womens victimized of the marital rape as per the several datas by NCRB 2019, and other reports done occasionally. And the question raises here, if the cases are not reducing, what is the effectiveness of the existing laws and why can't consequently criminalize it?


Award Winning Article Is Written By: Mr.Pragyanshu Gautam

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