One of the path breaking decisions of the Delhi High court in the case of RIT Foundation v The Union of India held that the relationship cannot put Rape on a different pedestal as a woman remains a woman.
A group of petitions challenging the legal provision that exempts sexual intercourse by a man with his wife from the purview of rape. An exception to Section 375 of the Indian Penal Code, which defines rape, states that sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
The petition was filed by Ms. Karuna Nundy, counsel for the Petitioners, All India Democratic Women’s Association and Rit Foundation wherein the issue raised was how the dignity of a married woman is not affected as an unmarried woman when the man imposes himself on her and remarked that relationship cannot put it on a different pedestal as a woman remains a woman.
Arguments put forward by Petitioner
Ms. Karuna Nundy has pointed out that the Supreme Court has taken an emphatic view (per Lokur, J.), in Independent Thought v. Union of India: “On a combined reading of C.R. v. UK and Eisenstadt v. Baird it is quite clear that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist.”. In this decision part of Exception 2 to s375 of the IPC was struck down, and the judgment confined to rape by husbands of their minor wives only. To the extent all female citizens (whether adult or minor wives) are guaranteed the same constitutional rights to bodily integrity, equality and free expression the ratio explicitly applies to all women.
The arguments were divided into three limbs namely:
- There is no presumption of constitutionality of a pre-constitutional provision.
- As held by courts in various jurisdictions, including our Supreme Court, striking down the marital rape exception (‘MRE’), will not create a new offence.
- The MRE & other impugned provisions fail to pass Constitutional muster (since they are violative of Article 14, 15, 19 & 21), and it is the constitutional courts explicit mandate under Article 13 to set it aside, without awaiting legislative action.
No presumption of constitutionality of pre-constitutional statutes
The Supreme Court in a number of decisions, most recently in Navtej Singh Johar v. Union of India and Joseph Shine v. Union of India , held that there would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would have to be tested on the anvil of Part III of the Constitution.” This along with the fact that MRE is an ex-facie infringement of fundamental rights by the statute, the onus to prove that the law is constitutional, shifts to the State.
Striking down the MRE doesn’t create a new offence
Striking down the MRE, section 376B IPC and section 198-B of the CrPC, will not lead to the creation of a new offence. Deepak Gupta, J. in Independent Thought case held that, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO.
The Supreme Court has in Hira Lal P. Harsora & Ors. v. Kusum Narottam Das Harsora & Ors.(2016) 10 SCC 65 created a new class of offenders. The words “adult male” in the Domestic Violence Act (a quasi-criminal statute, which prescribes criminal penalties on non-compliance of protection orders) were struck down by Court from the definition of the term “respondent”, so persons of other genders could be impleaded as “respondents” under the Act.
The MRE is violative of Article 14
The IPC classifies the crime of rape based on the marital status of the victim, viz.
- a) unmarried women (single, live-in partner and/or divorced) or women raped by a person/(s) other than her husband (punishment u/s 376(1) is 10 years to life (as
amended in 2018));
- b) married women (when perpetrator is husband, currently not recognised as ‘rape’)
- c) married but separated (de jure or de facto) women (again, when the perpetrator is
her separated husband) (punishment is 2-7 years. s. 376B; s.198B CrPC, inserted in 2013).
Section 198B CrPC limits cognisance of such rape to courts. classification has no relation or nexus with the object of the statute to criminalise rape – i.e. to prevent and punish non-consensual sexual intercourse, and to protect a woman’s bodily integrity, sexual and personal autonomy and dignity. The object of the provision cannot be, as is sought to be advanced by the Union of India, the protection of the so called ‘institution’ of marriage.
Further, the Exception suffers from irrationality and manifest arbitrariness inasmuch as it
provides immunity to a man for forcibly having sex with his wife, but not to a man forcibly having sex with a woman who is not his wife (but may, for instance, be his live in partner). Such privilege of the purported sanctity of an ‘institution’ over the rights of the individuals involved is manifestly arbitrary and thus in violation of Art. 14. The Supreme Court stated in response to the State’s defence of the MRE w.r.t. minors, that “marriage is not institutional but personal – nothing can destroy the ‘institution’ except a statute that makes marriage illegal and punishable” (Lokur, J. in Independent Thought. Chandrachud J in Joseph Shine has held: “(T)he delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny”
As noted by the Supreme Court in Independent Thought the MRE results in an anomaly: a husband can be prosecuted for lesser sexual offences u/s. 354, 354-B, 377 IPC etc., but not for rape. Indeed slapping your wife or killing her in the bedroom is specifically criminalised, but not raping her.
The Supreme Court usually analyses under-inclusiveness in the Art 14 context. A classification is bad as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated.[State of Gujarat v. Ambica Mills (1974) 4 SCC 656]. Section 375 serves a legitimate purpose – to criminalise rape; however, it is underinclusive inasmuch as it excludes men who rape who have forced non-consensual intercourse with their wives. It is for this precise reason that the New York Court of Appeals in Liberta found the MRE unconstitutionally underinclusive.
Generally, courts interrogate the constitutionality of exemption and exception clauses in the following manner: when a provision which is in the nature of an exception to a general statute is invalid, the general provisions of the statute are not invalidated thereby, unless it clearly appears that the exception is so intimately and inherently related to and connected with the general provisions to which it relates that the legislature would not have enacted the latter without the former.
MRE amounts to a violation of Article 15(1)
Recent jurisprudence of the Supreme Court (Anuj Garg & Navtej Johar) has held ‘discrimination on the basis of sex’ to mean any discrimination founded on a stereotypical understanding of the sex in question. Thus, MRE, which is founded on a stereotypical understanding of ascribed gender roles in a marriage – would render it discriminatory under Art.15(1) of the Constitution.
MRE violates the right to dignity, liberty and personal & sexual autonomy under Art. 21
A woman’s right to make reproductive choices is a dimension of “personal liberty” and her physical integrity flows from her right to life, dignity & bodily privacy under Art. 21. “This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity” also held that gender violence is often treated as a matter of family honour (much like in the present case), and privacy must not be a cover to conceal and assert patriarchal mindsets.
MRE violates a married woman’s right to self-expression under Art. 19(1)(a)
The expression of one’s sexual desire is part of self-expression protected under Article 19(1)(a). Misra, CJI in Navtej Johar held “[A]rticle 19(1)(a) which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means”. The Supreme Court in NALSA v. Union of India stated that “Self-identified gender can be expressed through dress, words, action or behavior or any other form…subject to the restrictions contained in Article 19(2) of the Constitution.” As such, the impugned provisions of law do not recognize the right of a married woman to say no to sexual intercourse with her husband. As a corollary, the impugned provisions also take away a married woman’s ability to say ‘Yes’ to sexual intercourse, both aspects of Exception 2 to 375 being contra Article 19(1)(a) and limiting a married woman’s right to freedom of sexual expression and behaviour.
MRE fails the strict scrutiny test
Pre-constitutional statutes like the IPC do not enjoy a presumption of constitutionality. When the same is coupled with an ex-facie infringement of fundamental rights (such as a discrimination against a protected category under Art. 15(1)), the burden of proof shifts to the State to demonstrate constitutionality. When such provisions are challenged, the Court undertakes a strict scrutiny of the infringing legislation.
Judgement By Delhi HC
The Bench which comprised Justice C Hari Shankar remarked that the nature of the relationship cannot put the offense on a different pedestal.
“Imagine a woman going through her menstrual cycle. Partner says I want to have sex today and she says no I can’t, I am not in condition. He then brutalizes her. You are saying he will be charged with other Sections but not 375. That is precisely what we are testing. If for a live-in partner, this is an offense under 375 then why not for the husband? The thrust and rationale is that relationships cannot put the same offense on a different pedestal. The woman remains a woman,” the Court remarked.