'HC can strike down exception to marital rape, without explaining how it can be proved. Let trial courts adjudicate on the basis of facts of each case', counsel tells Delhi HC

THE Delhi High Court, on Monday, continued to hear arguments on a batch of petitions challenging Exception 2 to Section 375 of the Indian Penal Code [IPC] in the case of RIT Foundation & Ors. vs. Union of India.

After hearing the arguments made by petitioners and intervenors, which began in January, a division bench of Justices Rajiv Shakdher and C. Harishankar today adjourned the matter for two weeks in anticipation of the response of the Union Government on the merits of the case.

Appearing for the union government, Solicitor General [SG] Tushar Mehta disowned the affidavit filed by the union government's standing counsel Monica Arora in 2017 in which it had submitted that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.

Also Read: Marital rape exception: law should not hesitate to call a spade a spade, says Amicus Curiae to Delhi HC

SG Mehta told the bench that the stand of the government as of now is neither in favour of the retention of the exception nor against it.

"The Government of India is committed to fully and meaningfully protecting the liberty, dignity and rights of every woman who is the fundamental foundation and a pillar of a civilised society. At the same time, the question involved in the petition may not be treated merely as a question concerning the constitutional validity of a statutory provision as the subject matter has and will have far-reaching socio-legal implications in the country. The matter, therefore, needs a comprehensive approach rather than a strictly legal approach", SG Mehta read out from the affidavit signed by the officer of the rank of Joint Secretary in the Union Ministry of Home Affairs.

Mehta added that the union government would be in a position to assist the court meaningfully only after undertaking a consultative process with all the stakeholders, including the state governments. He added that the matter is pending since 2015 and no prejudice would be caused to anybody if the court awaits the outcome of the consultative process.

Also Read: Marital rape exception allows absurdity to prevail, argues Amicus Curiae, Rebecca John, before Delhi HC

Responding to Mehta, Justice Shakdher said the bench had no role whatsoever in listing the matter. "The case was assigned to this bench by the roster-in charge, that is, the Chief Justice", Justice Shakdher stated. Mehta was quick to clarify that he did not mean for a second that listing of the case was a reason to say that the government did not get the time.

Justice Shakdher said: "We as a constitutional court have a duty to decide all the lis which comes before us". He added that there are two ways of closing the issue. First, the Court decides it. Second, since it involves a challenge to the legislative provision, the legislature intervenes. He gave a hypothetical example: Suppose the legislature agrees with the petition and repeals the exception to marital rape, it will give rise to a fresh cause of action. Those who disagree with the repeal will also challenge the law. So there are two sides to this debate, Justice Shakdher added.

We have to decide the case one way or other, and if somebody is aggrieved, he will have the option to carry the matter to the second court, Justice Shakdher told Mehta.

Justice Shakdher said he would not mind giving one week or two weeks to the union government, but it has to come up with its stand somebody.

The bench eventually gave two weeks to the Centre to come up with its stand on the petitions.

Senior advocate Colin Gonsalves, appearing for one of the petitioners, completed his rejoinder submission today. He argued against retaining the marital rape exception. He submitted that while striking down the Exception, it was not necessary for a constitutional court to dwell into the issue as to how marital rape would be proved.

"Once the declaration of unconstitutionality is made, the task of the High Court is done. It is for the Trial Courts to adjudicate the disputes regarding marital rape based on the fact of each case that will bring enriched legal meaning to the critical legal issues, particularly the meaning of the word 'coercion' or the meaning of the word 'consent'", he submitted.

He added that it is for Parliament to look into issues that may arise once the Court strikes down the Exception.

He added that it is not within the adjudicating capacity of a constitutional court to imagine the broad spectrum of possibilities and then to come a conclusion that it was doubtful it should be abolished.

Gonsalves argued that the decision of the Supreme Court in the Independent Thought judgment of 2017 is binding on the high court. He said the reasoning advanced in Independent Thought while reading down the Exception equally applies to the present case.

In this case, a two-judge bench of the Supreme Court read down Exception 2 to section 375 in so far as it relates to a girl child below 18 years of age.

Gonsalves cited a research paper ("Reporting and incidence of violence in India", 2005) by academic Ashish Gupta, which concluded that the incidence of sexual violence by husband per 100,000 women was 6,590.  "The aforementioned analysis clearly shows that sexual violence by husband, or marital rape is much more common and less reported", Gonsalves submitted.

On the sentencing aspect, Gonsalves submitted there is no evidence that India's socio-cultural situation requires an exemption from prosecution for a husband or requires a lesser sentence.

"Rape being the most heinous crime, we cannot agree that there are degrees of rape. The sentence should be the same for sexual violence offence both in marriage and outside marriage", Gonsalves said. He, however, added that those who want lesser sentence in marital rape matter can persuade Parliament to do so.

Also Read: Immunity to husband from marital rape is to protect civil liberty of the husband, Men Welfare Trust tells Delhi HC

Gonsalves referred to the Convention on the Elimination of All Forms of Discrimination against Women [CEDAW] which mandates States parties to condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake inter-alia all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.

Earlier, advocate Karuna Nundy, appearing for the petitioner, made submissions against the immunity given to the husbands from prosecution for raping their wives. She argued that until marital rape becomes an explicit offence it would remain condoned.

"This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse. It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal license to ignore consent. The normative force of a judgment of this Hon'ble Court will go a long way to realising our long cherished constitutional goal of equal respect and dignity to all", she submitted.

She added that the provisions of law that postulate a notion of marriage that subverts equality is manifestly arbitrary and bad in law.

She submitted that the object of rape laws as set out in post-constitutional amendments to Section 375 IPC (in 1983, 2013 and 2018) are to protect women from violence, and to protect their bodily integrity and sexual autonomy. Inherent in this object, is the foregrounding of the entire law on consent – and hence that no man should be able to force a woman to have sex with him, she said.

Senior advocates Rajshehkar Rao and Rebecca John, whose assistance the court had sought, also argued at length against the Exception. While advocate J. Sai Deepak, for Men Welfare Trust, opposed the petitions, and advocate R.K. Kapoor, arguing for an intervener, the NGO "Hriday", supported Deepak and sought dismissal of the petitions.