[Marital Rape] Delhi High Court judges differ on constitutionality but agree that Supreme Court should settle the issue

A division bench of Delhi High Court on Wednesday delivered a split verdict regarding criminalisation of marital rape. .While Justices Rajiv Shakdher and C Hari Shankar of the Delhi High Court disagreed on almost every aspect of the challenge to Exception 2 to Section 375 of Indian Penal Code (IPC), they held a concurrent view that the matter should now be decided by the Supreme Court.Both the judges said that the issues involved in the case raise a substantial question of law which requires a decision by the nation's top court."I concur with my esteemed brother in his decision to grant certificate of leave to appeal to the Supreme Court in the present matter as it involves substantial questions of law, of which the Supreme Court is presently in seisin," Justice Hari Shankar said in his judgment..In the nearly 200 page judgment, Justice Shakdher came to conclusion 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. However, in his differing opinion, also running into over 200 pages, Justice Hari Shankar held that the challenge to the provisions have to fail and the petitions deserve to be dismissed. .Here is the brief summary of the observations made by both the judges on various aspects of the challenge in their respective judgments: .Justice Rajiv Shakdher: Constitutional viability of classification between married and unmarried women in context of Article 14 of Indian ConstitutionThe classification is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is "real rape" and the same act within marriage is anything else but rape; The rape law as it stands at present is completely skewed insofar as married women are concerned;Sex- worker has been invested with the power to say "no" by the law; but not a married woman;In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law but not the offending husband only because of his relationship with the victim;A married woman's ability to say "no" to sexual communion with her husband when he is infected with a communicable disease or she is herself unwell finds no space in the present framework of rape law;When marriage is a tyranny, the State cannot have a plausible legitimate interest in saving it..Violation of Article 21 of the Constitution:Marital rape exception violates Article 21 of the Constitution because the offence of rape and injury caused remains the same irrespective of who the offender is;The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being;Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate;Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally..Violation of Article 15 and 19(1)(a) of the Constitution: The marital rape exception discriminates within the same sex, solely on the ground of their marital status; It violates the guarantee given by the Constitution concerning freedom of expression to married women..On Conjugal expectations:Conjugal expectation cannot be equated to an unfettered right to have sex without consent of the wife;Conjugal expectations, though, legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife..Not labeling non-consensual sex as rape to save institution of marriage:The edifice on which familial structure is erected can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other’s yearning for physical and mental autonomy;State appears to have stopped short of conferring the right on a woman to call out an offender who happens to be her husband when he subjects her to rape;Sexual assault by the husband on his wife falling in the fold of Section 375 of the IP needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender..Creation of new offence: Offence of rape is already defined in Section 375, if the exception is struck down, it would only extend the ambit of the existing law to offending husband; A new offence/new crime would perhaps have been created if the ingredients of the offence had changed which is no one's case;Reading down, filling gaps (casus omissus) and/or excising parts of an offending provision is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful..Other observations:It is well documented that marital rape is recognised as an offence in more than 50 countries. We can ignore this rich resource material only at our own peril;Rigid separation of powers doctrine does not apply in the Indian context. Unlike the US Constitution, our Constitution is not based on rigid separation of powers, although, it provides for a separate Legislature, the Executive and the Judiciary;Judicial restraint does not mean "shunning responsibility" to decide what falls within the ken of the court and leaving it to the Executive and/or the Legislature. This would constitute abandonment of the duty and the role which the Constitution has defined for the courts..Justice C Hari Shankar.Intelligible differentia:Intelligible differentia exists between a married and an unmarried woman. Once that is established, the scope of the enquiry by the Court ends there;It is not open to a court to examine further whether the object of the legislation is sufficient to justify the differentia;Once the legislature adopts the view that there is an object X that it seeks to achieve, which is legal, and that, in order to achieve that object, it seeks to distinguish between A and B, if the distinction thus drawn between A and B has a rational nexus with object X, the legislation is ipso facto intra vires;The Court cannot tell the legislature that “though you feel that treating non-consensual sex between husband and wife as rape would threaten the marital institution, we do not think so”..Negation of woman's consent in Section 375 IPC:There is nothing in the Exception which obligates a wife to consent to having sex with her. All that it says is that sexual acts by a husband with his wife are not rape;The mere fact that if the wife, on a particular occasion, were not to grant consent for sex with her husband, and yet the husband compels her to have sex, the act committed by him would not qualify as ‘rape’ within the meaning of Section 375 cannot, be regarded as disregarding the wife’s right to grant or refuse consent.There is no inflexible legal principle that every act perpetrated by one human being on another has necessarily to invite criminal consequences;The Exception retains the wife’s decisional autonomy in the matter. She still has the right to either say no, or, "a joyful yes”. .The exception when tested against Article 14:If a provision is to be struck down as violative of Article 14 on the ground that it is arbitrary, the arbitrariness must be in relation to the manner in which it creates a distinction between persons or things who appear, otherwise, to be similarly situated;What may appear to be arbitrary to one may not appear arbitrary to another – the present case being a stellar example;If arbitrariness alone is to be the basis, the legislation would become subject to the vagaries of judicial thinking;So long as justice is administered by judges, and not automatons, arbitrariness per se would, therefore, be too slender a thread on which to hang a statutory provision, in order to test its constitutionality..Creation of offence:Striking down the Exception will lead to creation of an offenceIf a provision is found to be unconstitutional, the Court may strike it down provided, by doing so, it is not creating an offence;If the Court creates an offence by its judgment, there is an absolute proscription, even if the provision is otherwise unconstitutional;Judges sitting in courts cannot, on the basis of arguments of counsel, howsoever persuasive, create offences, or pass judgments which would result in an act, otherwise not an offence, being rendered an offence;If the Exception was to be struck down, court would make, ipso facto, the punishments envisaged by Section 376, applicable to a husband, where the legislature never intended these punishments to apply to him..Challenge to Section 376B IPC (Sexual intercourse by husband with wife during separation):Sex between separated couple cannot be equated with sex between strangers or to a couple in marriage cohabiting together. A middle path has, therefore, been carved out by the legislature and there is no reason to interfere with this dispensation;The exercise of legislative discretion is entirely in order and the challenge to the vires of the provision has no legs to stand on..Position in foreign jurisdictions and recommendations in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW):It is largely irrelevant to the issue at hand;Striking down the Exception has to be decided on the basis of our Constitution, and the principles enunciated by Courts regarding constitutionality of statutes;It is not open to any Court in India to strike down the legislative provision as unconstitutional merely so as to conform to what may be the international sentiment;Socio-economic and ground realities in India with its complex diversity of people and cultures, are not comparable with the situation in other countries;CEDAW recommendations are merely recommendations which do not bind even the legislature to legislate in accordance with them..LawyersAdvocate Karuna Nundy and Senior Advocate Colin Gonsalves led the arguments for the petitioners. They were assisted by advocates Ruchira Goel, Rahul Narayan, Nitish Chaudhary, Ragini Nagpal, Muskan Tibrewala, Utsav Mukherjee, Shashwat Goel, Mukesh Sharma, Raghav Awasthy, Olivia Bang, Sneha Mukherjee, Mugdha and Aimy Shukla. Senior Advocates Rebecca John and Rajshekhar Rao appeared as amici curiae. They were assisted by advocates Harsh Bora, Praavita Kashyap, Chinmay Kanojia, Pravir Singh Adya R. Luthra, Karthik Sundar, Mansi Sood and Sonal Sarda. Advocate J Sai Deepak along with Amit Lakhani and Ritwik Bisaria intervened for the Men Welfare Trust. Advocate RK Kapoor also intervened for an NGO named Hridey. The Central government was represented by Solicitor General for India Tushar Mehta, Additional Solicitor General (ASG) Chetan Sharma, its standing counsel Monika Arora and Anil Soni, along with advocates Vinay Yadav, Amit Gupta, Akshya Gadeock, Rishav Dubey, Rajat Nair, Sahaj Garg, RV Prabhat, Ruchir Mishra, Sanjiv Kumar Saxena, Mukesh Kumar Tiwari, Ramneek Mishra and Devesh Dubey. Additional Standing Counsels (ASC) Nandita Rao and Gautam Narayan along with advocate Nikita Pancholi appeared for Delhi Government. .[Read Judgment]