The Delhi High Court is currently hearing final arguments in a series of public interest litigations (PILs) challenging the "marital rape exception" clause in Indian Penal Code Section 375. (IPC).
While the legal complexities of the issue are numerous, the extent of the social and emotional impact of this debate can be seen in court arguments as well as media discussions, including on social media. The fact that the case is being heard in court has sparked a social media debate in India about "men's rights" and the impact of false allegations on "men and marriage."
The heart of the debate is Exception 2 to Section 375 IPC, which states that any sexual act performed by a man on his own wife is not rape as long as the wife is not a minor.
This exception exists in Section 375, which otherwise defines various acts that, if done against a woman's consent, by force, fraud, or coercion, or to a woman incapable of giving consent, are defined as rape.
History of the marital rape :-
The NGO RIT Foundation first petitioned the Delhi High Court in 2015, challenging the legality of the "marriage exception. "which follows the Supreme Court's decision in 2017 that the marriage exception does not apply if the wife is under the age of 18, petitions were filed by the All India Democratic Women's Association (AIDWA) as well as three individual petitioners, one of whom is a victim of domestic and sexual violence.
The Central Government stated in a 2016 affidavit that criminalising "marital rape" would "destabilise the institution of marriage and become a tool for husband harassment."
In a new affidavit filed on January 20, 2022, the Center stated that consultation on this "contentious issue" is currently underway, especially in light of the 2013 Justice JS Verma committee report and the 2017 Supreme Court decision, which held that the "marriage exception" will not apply if the wife is under the age of 18.
The case is currently being heard by a bench of Justices Rajiv Shakdher and C Harishankar. Arguments have been heard from the petitioner NGOs as well as the Men's Welfare Trust, a "men's rights" organisation that opposes the petition.
The Delhi government has also stated that a woman subjected to sexual violence by her husband has several other criminal avenues available to her, and that changing the IPC section is not necessary.
For the time being, the Center has sought time from the Court to make its stance clear, stating that it is "undertaking a comprehensive exercise" of holding consultations on criminal law amendments and that the Court should allow time for the consultations to conclude.
The bench, on the other hand, has asked the Center to expedite the process and take a firm stance on the issue.
Amicus curiae Rebecca John is scheduled to conclude arguments on Monday, January 24. Amicus Curiae Rajshekhar Rao has already concluded his arguments in favour of striking down the provision.
After the Amicus, the court will hear arguments from the NGO Hriday Foundation, which is opposed to the exception being struck down. Other non-governmental organisations have asked the court for permission to intervene in the case, but the court has refused.
WHAT ARE THE LEGAL ISSUES?
Apart from the obvious issues of "social disharmony" and "damage to marriage and family systems" raised by the government in its 2016 affidavit, the court is looking into the intricate legal issues that would arise in this case.
DEFINITION OF CONSENT
The most important question before the court is how "consent" can be defined, especially when there is "implied consent" and "expectation of conjugal sexual relationship" in a marriage. The judges also noted that there is a distinction between the "right to have sex" and the "reasonable expectation of sex," but the definition of consent within a marital relationship must be considered.
Is there "inherent consent" if someone is married? The court has also expressed concern that the "right to say no" must be regarded as an inherent part of the fundamental right to privacy and dignity.
During the arguments, it was also argued that the fact that an unmarried woman can prosecute a man for sexual intercourse while a married woman cannot is a violation of articles 14 and 19 of the Constitution.
On the other hand, there is the issue of "expectation of conjugal relationship," as well as the social construct of "marriage," which is based on implied physical, sexual, and emotional companionship.
The arguments have also raised the issue of a woman's autonomy and whether modern democracy can continue to rely on 17th-century legal principles that regarded women as "property of the husband," with no decision-making power or autonomy.
Senior advocate Colin Gonsalves, arguing for the petitioners, also argued that the "implied consent" in a marriage cannot be considered "irrevocable consent," and a woman must have the freedom and choice to say "No."
Amicus Rajshekhar Rao, in his arguments, also said that marriage is no longer seen as "sacrosanct" and that there are several legal provisions in place to protect women.
INTELLIGIBLE RATIONALE
One issue that the High Court judges have repeatedly raised is whether the "difference" between a marital relationship and an act done outside of marriage can be considered an "intelligible differentia" under article 14, which allows the law to apply different rules to married and unmarried women.
Petitioners have argued that there is no rational reason to elevate the "marital relationship" and deny a married woman the right to prosecute her own husband, even when she has the right to prosecute everyone else.
The government and men's rights organisations, on the other hand, have argued that the institution of marriage creates a rational difference and that criminalising sexual violence within a marriage as a serious offence of "rape" would have a cascading effect on society and marriage itself.
LEGAL 'RAPE' AND OTHER OFFENCES
One argument that has been raised in the case is whether bringing the marital relationship within the strict offence of "rape" is necessary.
This line of argument says that since rape is a serious offence, carrying long jail terms, it would have a very negative effect if the allegation were raised during a matrimonial dispute.
The Men’s Welfare Trust has even argued that since there are several instances of misuse of the currently available domestic violence and dower harassment laws, bringing the marital relationship within the definition of "rape" has the potential for serious misuse.
The Delhi government also argued that a woman who is subjected to violence by her husband is protected by a number of other criminal laws. The Domestic Violence Act, dowry harassment and cruelty offences under the IPC, as well as IPC offences relating to causing bodily harm, all carry jail terms and are alternative remedies available to a woman subjected to violence by her husband.
The Court will also have to consider how to define rape by a husband on a wife. Rape by a "relative" or a "person in a position of authority and trust" is now considered a much more serious offence, punishable by harsher penalties. Repeated rape of a woman by the same person is also considered an aggravated offence, carrying harsher punishment than a single incident.
If the "marriage exception" is removed, the court will have to consider whether rape by a husband would also be subject to the harsher punishments under the law,since it is more difficult to prove the offence in a relationship where regular sexual intercourse occurs, unless there is proof of serious injury.
OTHER ASPECTS OF CRIMINAL LAW
The court must also consider the legal effects of removing the "marriage exception" from other IPC offences.
Could someone be charged with "attempted rape" under Section 511 of the IPC if the victim is their wife? In a relationship where there is a sexual relationship, how would evidence of an "attempt" be considered?
Another argument advanced by the petitioners is that prior to the 2017 amendment to Section 375, a married woman could prosecute her husband under Section 377 for "sexual intercourse against the order of nature," which would include forced anal or oral sex and a variety of sexual activities.
However, following the amendment, these acts are now included in the definition of "sexual activity" under section 375, and due to the marriage exception that is currently in place, a woman can no longer prosecute her husband for such acts, even if forced to do so. The court will need to take this into account as well.
THE SCOPE OF JUDICIAL POWER
One question that the court itself has raised is whether striking down the "marriage exception" would "create a new offence -- i.e., will the court need to define the law around what kind of sexual acts or behaviour would fall under "marital rape"?
The separation of powers between the legislature and the judiciary is a fundamental principle of Indian law. This means that where legislative provisions already exist, courts cannot "create legislation."
The Court will also have to consider the scope of judicial interference in this case, especially since the central government has yet to take a firm stance on whether it will look into amending the marriage exemption.
During arguments, Amicus curiae Rebecca John argued that the court has the authority to strike down the exception on the grounds of discrimination against married women, and that doing so would not "create" an offence or a "new" class of offenders under the law.
Amicus Rajshekhar Rao also argued that the law's definition of "rape" recognises the "act" as an offence, and the "exception" is specifically carved out. The amicus curiae essentially argued that striking down the exception would not result in the creation of a new law, since the law itself criminalises the act of forced sex.
On Thursday, amicus Rebecca John argued, "Not every act is sought to be punished. What is sought to be punished is the act of forced or forcible sex against the consent of the wife."
It now remains to be seen how the court will interpret this intricate legal issue.
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