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‘Which provision of which law is not misused?’ Delhi HC on IPC exception for marital rape

The court is hearing petitions challenging the constitutional validity of the 2nd exception to Section 375 of IPC that defines rape, but doesn't allow it to be applied to a married couple.

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New Delhi: “Which provision of which law is not misused?” asked the Delhi High Court Wednesday, as it considered the possibility of the law being misused if the exception for marital rape in the Indian Penal Code (IPC) is removed. 

Section 375 of the IPC defines the offence of rape, but carves out an exception for sexual intercourse between a married couple. “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” the exception reads.

A bench of justices Rajiv Shakdher and C. Hari Shankar is hearing petitions filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, as well as two individuals, challenging the constitutional validity of the second exception to Section 375 of the IPC. 

While senior advocate Rajshekhar Rao is assisting the court as amicus in the matter, the court said Wednesday that senior advocate Rebecca John will also be assisting the judges.  

During the hearing, Rao asserted that there are times when the “legislature is lethargic”, which is when “it may be wise for the court to step up”.

In response, Justice Shakdher said, “We need to… We can’t just look the other way. We might be right or wrong. We may be corrected.”

Also read: ‘Have 50 nations got it wrong?’ Delhi HC asks as it looks into IPC exception for marital rape

Men Welfare Trust opposes petitions

In a 2017 verdict, the Supreme Court had read down this exception to increase the age of consent for sexual intercourse within marriages from 15 years to 18 years under this exception. However, this case dealt exclusively with cases of child marriage, and not with the wider issue of marital rape.

During the hearing Wednesday, the court heard arguments from Men Welfare Trust, which opposed the petitions filed before the court. Among other things, the trust sought to highlight the possibility of misuse of the law, if the exception is struck down as unconstitutional by the court. 

Another lawyer, advocate Raj Kapoor, arguing an impleadment application (application filed by a party wanting to be part of the proceedings) filed in the case, also argued against the petitions, asserting that “if Exception 2 is struck down, it is likely to be misused as Section 498A IPC has already been misused”.

Section 498 A of the IPC deals with cruelty or harassment of a woman by her husband and/or his relatives.

The court will continue hearing arguments on the petition Thursday from 3 pm.

‘5 mins before marriage it’s an offence, 5 mins after it isn’t’

Making his submissions before the court, Rao gave examples to explain the effect of this exception. He said, “If a couple is in courtship, and the man forces himself on a woman, he is committing rape. Suppose they are engaged, he still commits an offence…. Five minutes before marriage, it is an offence, five minutes after marriage, it is not an offence. The woman cannot call it rape anymore.”

Pointing out that the courts have held that “the act of rape dehumanises the existence of a woman”, Rao asked, “The question that we should perhaps be asking ourselves is that should the court sit back and see women being dehumanised everyday?”

“Every day this act remains on the books, there is a section of the population who is denied the ability to call a rape a rape,” Rao added. 

Rao also went on to refer to Sections 376(2) and 376C of the IPC, which have special provisions for rape by those in a capacity of trust or in a fiduciary relationship with the woman, like a police officer or a relative, guardian, hospital management or superintendent of jail. 

“The law places a premium on relationships and a greater responsibility on someone having a fiduciary relationship,” he explained. 

Rao then compared it with the exception challenged before the court and said, “The silver lining, or the complete lack of it, is that a woman is better off, as a matter of law, when she is assaulted by a stranger. But when her loved one assaults her, the law says, she cannot call it rape.”

‘Are we creating an offence?’

Justice Harishankar also asked Rao to address certain questions during the next few hearings. 

This included questions on trust and fiduciary relationships. The judge asked, “For example, trust in a case where chowkidar in school, teacher or student etc… These are one category of trust. Can you say that it’s something which is similar to trust existing between husband and wife in a sexual relationship? You will have to answer this.”

“No person who is under the care of a person, like a chowkidar or a parent, can remotely expect they will try to engage in sexual activities with them,” Justice Harishankar added.

Justice Harishankar also asked Rao to address the questions pertaining to the argument that if the court does strike down the exception, it would amount to “creating an offence” of rape for married men. 

“If we are, is it permissible for us to do so?” the judge added. 

(With inputs from Akshat Jain)

(Edited by Saikat Niyogi)

Also read: Any act of rape punishable but marital relationship qualitatively different, says Delhi HC


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