New Delhi: “Let’s not walk on eggshells here. If it is a rape, it is heinous, then to say that we will exclude a certain circumstance because of the relationship (of marriage) is problematic,” Justice Rajiv Shakdher of the Delhi High Court said Thursday while hearing a bunch of petitions challenging marital rape.
Justice Shakdher and Justice C. Hari Shankar, as part of a special bench of the HC, are currently hearing a batch of four petitions challenging the exemption under Section 375 of the Indian Penal Code, which states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.
The petitions — filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, and two individuals — have asked the court to read down the exception. A 2017 case, in which a 27-year-old woman alleged that she was raped by her husband, has also been tagged with the petitions.
Senior advocate Rajasekhar Rao, who is assisting the HC as amicus curiae (‘friend of the court’), submitted Thursday that the exception is violative of Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution. The HC, as a constitutional court, has a “positive obligation” to then strike it down, he contended.
Rao further submitted that the offence of rape is punishable, and when the only reason why immunity is granted to is the husband-wife relationship, the provision effectively denies the woman her most cherished right under Article 21.
“A rapist remains a rapist. No amount of legal jugglery can alter that reality. If, in 2022, we can’t say that rape is rape merely because of the relationship between the parties, I’m afraid the Constitution has gone seven decades back and Article 21 hasn’t come as far as we hoped it would,” said Rao.
“There is no greater indignity heaped upon by the law than denying the woman the right to call a rape, rape,” he added, asserting that the provision is violative of Article 21.
‘Criminal law is already in the bedroom’
Rao rejected the contention that criminalisation of marital rape would destroy the institution of marriage, contending the whole institution is not affected, just a specific marriage where such an incident takes place.
He further contended that the argument that the State cannot be allowed to enter private spaces, is unfounded. “Criminal law is already in the bedroom. Big brother is already watching you,” he added.
“A marriage is a sacred relationship, where two people, or two families come together. You find your balance. The law says, take the marriage away, you are two equals. So why should a husband’s desire to have sex that day trump the wife’s desire to not?” Rao asked the court.
He additionally pointed out that even in cases where the law provides for ‘restitution of conjugal rights’ (a decree for the woman to live with her husband), the law does not recognise such cohabitation without consent.
“Even in cases of a decree, it provides for attachment of the woman’s property. The law does not provide for attachment of her body, because that is her property,” he added.
Rao pointed out that the law requires consent in all cases, even in cases of sex work, where there “may be a reasonable expectation of sex”.
Justice Shakdher then said: “Courts have recognised her right to say no at any stage. Can a wife be put at a lower pedestal?”
The court further noted that all nine judges of the constitutional bench in the 2017 Puttuswamy case had unanimously upheld the inviolability of Article 21.
“In Puttuswamy, the decision was 9-0. Every single judge had the same conclusion (that the right to life is inviolable),” Justice Shakdher said.
We are on constitutionality: Justice Hari Shankar
Justice Hari Shankar said the arguments in the case have been around the “outrage” surrounding the issue, but the court was to adjudicate on whether it was unconstitutional.
“We are the court, and we are being asked to strike down an offence. If we have to do it, we have to do it, but we must be conscious of the seriousness of the issue,” he added.
He further said the parties’ personal views are immaterial to the present issue, and the court must decide whether it stands the tests which allow for striking down the provision.
“The legal part of it must be examined carefully within the well-defined case law as to when a statute can be struck down,” he added.
Advocate Monika Arora, appearing for the central government, mentioned that the government had called for comments for reforms of the criminal and substantive laws, and was holding consultations on the laws.
“We have invited comments from a variety of stakeholders including from the Chief Justice of India, chief justices of various high courts, as well as National Law Universities,” Arora said.
Dismissing this contention, Justice Shankar mentioned the subject of the provision “You will take 10 years to reform the whole IPC. If you are doing something particularly qua this provision, then you tell us,” he said.
Before Thursday’s hearing, Solicitor General Tushar Mehta had also informed Justice Shakdher that the central government was trying for a “constructive approach” to the petition.
The bench will continue hearing the matter Friday.
Akshat Jain, a first-year student of law at NLU, Delhi, is an intern with ThePrint
(Edited by Gitanjali Das)