RIT FOUNDATION V THE UNION OF INDIA
ARGUMENTS AGAINST STRIKING DOWN
• MWT does not contend that husbands/men have a right to impose themselves on their wives/spouses sighting marriage, as be all and end all of, implied consent to every marital privilege including sexual intercourse.
• The prayers made in the writ petition are beyond the scope of this court's jurisdiction and/or power that it may wield under any law or the Constitution since the prayers if granted would create a new class/specie of offence which is beyond the power of judicial review conferred on this court.
• The Doctrine of Separation of Powers does not have a mere transactional construct. Therefore, if this court were to grant the prayers sought by the petitioners, it would have the effect of keeping the Republic outside the pale of participation in law and policymaking on a sensitive social issue thereby truncating fundamental rights as well as empowering an "unelected body" to undertake an exercise which is beyond its constitutional mandate and expertise
• There are remedies available to address non-consensual sex between spouses, something which is apparent on a plain reading of Section 376B and Section 498A of the IPC as also the provisions of the Protection of Women from Domestic Violence Act, 2005
• Assuming for the sake of argument that the legal framework which criminalizes spousal sexual violence is inadequate, that by itself cannot be the reason to declare the impugned provisions unconstitutional. The gaps in the law which arise on account of inadequacy cannot be remedied by the judiciary since these aspects fall within the exclusive domain of the legislature
• Article 372 of the Constitution protects laws enacted prior to the Constitution coming into force as long as they pass muster of other provisions contained in the Constitution, in particular, provisions concerning fundamental rights. A law cannot be struck down merely because it pre-dates the Constitution.
• The abuse of the provisions of Section 498A of the IPC has been recognised by the courts and, therefore, there is a need to introduce gender-neutrality in the sphere of sexual violence. Therefore, if MRE is struck down, it would only add to the existing inequities and injustice.
• The fact that Section 376B of the IPC and Section 198B of the Code were incorporated in the respective statutes by Act 13 of 2013 i.e., after the Constitution came into force would enjoy the presumption of constitutionality
• MRE has the potential of destroying the institution of marriage. Thus, the institution of marriage is important not only for the couple involved but also for the family which includes children and parents
• The position of a sex worker cannot be compared with persons bound by marriage. The perpetrator or the abuser cannot claim restitution of conjugal rights against a sex worker and correspondingly a sex worker cannot claim maintenance against the perpetrator or abuser. There is no emotional relationship between the sex worker and the perpetrator whereas the relationship between the husband and wife is a package comprising mutual rights and obligations.
ARGUMENTS IN FAVOR OF STRIKING DOWN
MRE was manifestly arbitrary as it sought to decriminalise a crime as heinous as rape Section 376B of the IPC was unconstitutional since it created a distinction between husbands, who are not separated from their wives and those who are separated by bringing the latter class of husbands within the definition of rape in respect of forced sexual intercourse under Section 375 and, at the same time, assigned lesser punishment for such a crime.
• Marriage cannot be a relevant consideration in concluding whether a criminal offence has been committed or not.
• The rape of a woman by her husband was unconstitutional, right from inception and is being put to test only now
• The distinction sought to be drawn between western and Indian values insofar as marital rape is concerned, is untenable in law. There is no truth in the submission that Indian society is somehow superior to western societies and that marital rape is not known in India.
• This court should not desist from examining the constitutionality of the impugned provisions only because it is impossible to prove the occurrence of marital rape as at times it happens within the confines of a household.
• This court should also not desist from examining the constitutionality of MRE only because some women may file a false complaint against their husbands
• distinction drawn concerning the offence of rape between those who are married as against those persons who are unmarried, was unmerited
• The circumstances in which the conduct of the husband would amount to ‘coercion’ or ‘consent’ would be examined by the trial courts in the given fact situation. Evidence led by the prosecution and defence will determine the outcome of cases that are dealt with by the trial courts.
• The argument that in a marriage, there is a presumption in favour of consensual sex which is not present in forced sexual intercourse outside marriage is flawed. The argument is founded on the theory that husbands have a greater degree of laxity available to them with regard to consent when engaging in sex with their wives. That this argument is untenable in law can be tested against the plight of a sex worker. The Supreme Court has decried such an attempt by holding that even a sex worker has a right to refuse forced sexual intercourse.
• The submission advanced that forced sex in marriage cannot lead to a husband being sentenced to imprisonment for a term spanning between 10 years and life; the insinuation being that the sentence should be much less, is flawed.
• It is important to note that both the courts and parliament have in the past dealt with new and complex issues that have arisen in criminal law.
• The submission advanced that the observations made in the Independent Thought cannot be relied upon is erroneous; once a judgment is delivered on a given set of facts it is not open to a court to state that it cannot be relied on as a precedent.
• The submission that in marriage there is an “expectation of sex” i.e., a right to have sex absent consent would amount to resurrecting the Ghost of Lord Hale. a husband may “expect sex” but from there to argue that he would have the right to demand sex from a woman merely because she is in marriage with him, bereft of love, for satisfying carnal desire and procreation, is morally and legally untenable as it institutionalizes violence within the family.
• This case is about respecting the right of a wife to say “no” to sexual intercourse and recognizing that marriage is no longer a universal licence to ignore consent.
• The ratio decidendi of the Independent Thought case would apply while testing the constitutional validity of MRE as a whole. The propositions laid down by the Supreme Court in Independent Thought would also apply to all women i.e., wives who are aged 18 years and above.
• Applying the inversion test, it was submitted that Independent Thought case is an authority for the following propositions.:
i. A woman cannot be treated as a commodity.
ii. She has every right to say no to sexual intercourse with her husband.
iii. Marriage to a victim does not make a rapist a non-rapist.
iv. MRE creates an artificial distinction between married and unmarried women.
v. Woman is not subordinate to or a property of a man
vi. The view that criminalizing marital rape would destroy the institution of marriage is unacceptable since marriage is not an institution but personal - nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable.
vii. Removing MRE will not create a new offence since it already exists in the main part of IPC
• If a provision is found to be unconstitutional, the courts must act; holding that the matter is within the ken of the legislature is not a correct approach.
• MRE violates Article 14 of the constitution. It creates three classes of victims and perpetrators though the act is similar i.e., forced sexual intercourse.
• The MRE is violative of Article 14 as it creates an unreasonable, discriminatory and manifestly arbitrary classification
• MRE suffers from irrationality and manifest arbitrariness as it provides immunity from prosecution for rape to a man who has forcible sex with his wife but not to a man who has forcible sex with a woman who is not his wife
• if the purported rationale for retaining the impugned provisions has outlived its purpose or does not square with constitutional morality, the same should be declared manifestly arbitrary
• Those who support this view have not been able to establish how removing MRE is bad for marriage. There is no discussion found in legislative debates to support this view. There is also no reasoned dissent qua the recommendations made in this behalf by Justice Verma Committee Report.
• It places the privacy of marriage as an object above the privacy of the individual in the marriage. Parliamentary debates which make a vague reference to preserving the institution of marriage as justification for retaining MRE is a "neutral fact". The courts need to examine whether this neutral fact should be held to be subsidiary and directly contrary to the explicit object of the legislation.
• What is ironic is while MRE privileges a husband's right to fulfil his sexual desire as and when he wishes to exercise it, it effaces the wife's right not to engage in sexual acts. This by itself cannot stand constitutional scrutiny.
• Consent is foreground in IPC in provisions concerning sexual intercourse. The difference between the language of Section 377 and 375 is that in the former, the element of consent is absent. An act of forced sexual act as provided in Section 375, Clauses (a) to (d) of IPC irrespective of who commits it, is rape. The relationship between perpetrator and victim cannot change that fact. Rape is rape and, therefore, one should fairly label the offence for what it is.
• Fair labelling' is an important part of criminal law jurisprudence. The label should give sufficient information to the public at large as regards the offence that is committed. It plays an educative and declaratory function and, thus, in a way, reinforces the standards that the society may have set for itself. It also helps in establishing the principle of proportionality as the criminal justice system needs to provide for punishment that is proportionate to the gravity of the offence.
• The ingredients of offences such as grievous hurt, outraging the modesty of a woman and cruelty are substantially different from that of rape.
• Over the years, rape laws in India have evolved to the extent that victims are entitled to protection and support from the State. However, because marital rape is not called out as rape; generally, it enables States to shirk responsibility and accord the same level of care and protection which is given to a woman who is raped by a person other than her husband.
• MRE is also liable to be struck down on the ground that it violates Article 19(1)(a) of the Constitution. Article 19(1)(a) of the Constitution guarantees freedom of expression to all citizens. Intimate sexual acts are a part of an individual's right to freedom of expression, albeit, subject to reasonable restrictions contained in sub-clause (2) of Article 19
• Unconstitutional exception provided in a statute cannot have a free pass from judicial review on the ground that its removal would result in the creation of a new offence.
JUDGEMENT
Shakder J
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 Code, the same regime does not kick-in if the complainant is a married woman.
In this context, one may have regard to the following provisions of the IPC and the Code : Section 228A of the IPC prevents disclosure of the identity of a rape victim except in certain circumstances set out therein. Likewise, Section 26 of the Code provides that the offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided by a woman.
Section 53A empowers a medical practitioner to examine, a person charged with committing an offence of rape if he has reasonable grounds for believing that such examination will furnish evidence with regard to the commission of the offence. The notes that whatever the expectation might be (i.e., “unreasonable” denial of sex counts as a ground for divorce under Indian family law), it does not extend to an “unfettered right to sex” without consent
The marital bond is itself based on the idea of choice, and mutual respect for “physical and mental autonomy” once again, therefore, a legal provision predicated upon the denial of consent cannot be saved by appeals to the institution of marriage.
i. That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down.
ii. The aforesaid declaration would, however, operate from the date of the decision.
iii. The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them.
iv. Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court.
Justice Shakdher concluded that Exception 2 to Section 375 and Section 376B of the IPC as well as Section 198B of the Code of Criminal Procedure (CrPC), as they relate to husband or separated husband having sexual intercourse with his wife without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and therefore deserve to be struck down.
Justice Hari J
Just like not every instance of taking a life is not deemed under criminal law to be “murder”, therefore – it follows – that not every act of non-consensual sex is deemed “rape”; rather, it is the legislature that decides which kind of non-consensual act is to be deemed “rape”, just as it defines when the taking of life is deemed murder.
There is the assertion that a married woman who is subjected to non-consensual sex will not feel as “outraged” as woman who is raped by a non-married person . This assertion has no business being in a judicial opinion. Secondly, there is the assertion that “the majority of Indian women do not share the views of the petitioners.”
Plainly read, it is clear that there is nothing in the impugned Exception which obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent, or want of consent.
i. The legitimate conjugal expectations of the man, as the husband of the woman and the reciprocal obligations of the wife, the peculiar demographics and incidents of marriage, vis-à-vis all other relationships between man and woman, and all other legitimate considerations to which I have already referred, and which justify extending, to sexual intercourse and sexual acts within marriage a treatment different from such acts committed outside the marital sphere.
ii. The petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape, the impugned Exception does not violate Article 14, but is based on an intelligible differentia having a rational nexus with the object both of the impugned Exception as well as Section 375 itself, the impugned Exception does not violate Article 19(1)(a),
iii. The impugned Exception does not violate Article 21,
iv. None of the indicia, on which a statutory provision may be struck down as unconstitutional, therefore, can be said to exist, and
v. In such circumstances, the Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, hence challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the IPC, and Section 198B of the Cr PC, have to fail.
Lastly, Justice Shankar concurred with the opinion of Justice Shakdher in his decision to grant certificate of leave to appeal to the Supreme Court as the present matter involved substantial questions of law
REFRENCES
• https://www.scconline.com/blog/post/2022/05/12/split-verdict-on-criminalization-of-marital-rape-can-a-husband-be-labelled-as-a-rapist-delhi-high-court/
• http://164.100.69.66/jupload/dhc/RAS/judgement/11-05-2022/RAS11052022CW2842015_190346.pdf
• https://theleaflet.in/justice-c-hari-shankars-defence-of-marital-rape-is-a-homage-to-patriarchy/
• https://indianexpress.com/article/explained/explained-what-is-the-law-on-marital-rape-and-what-has-the-delhi-high-court-ruled-7912104/