Marital rape exception is an instrument of oppression, argues Amicus Curiae, Rebecca John, before Delhi HC

"Marital rape exception in IPC deprives a wife her right to say 'No' to her husband", submitted Amicus Curiae, Rebecca John to the Delhi high court bench which was curious to know what right the wife has to sacrifice in view of the exception. Practically, it is not an exception, but a complete exemption, John explained in the course of her submissions on Thursday.

The Delhi High Court, on Thursday, continued to hear the 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.

At the outset, the bench of Justices Rajiv Shakdher and C. Hari Shankar expressed displeasure at the permission sought by a lawyer seeking to intervene in the ongoing matter. Justice Shakdher remarked "We cannot allow the whole world to join the proceedings. This matter is pending for a long time and we are in the midst of hearing." This was the second intervention. A similar intervention was filed yesterday which the court declined as well. It directed the registry not to entertain any intervention applications in a part-heard matter.

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

John highlighted how the definition of rape expanded over the period of time since the Mathura rape case and much recently post- Nirbhaya case. John submitted that if Section 375 as existed today is seen dehors the Exception, the consent is paramount because this Section has two elements. One is the descriptive element and the other one is consent.

Further explaining her arguments, John submitted that the expectation of sex or meaningful conjugal right within a marriage can be mutual and if it is mutually consented to then there is no problem. And that is a fair expectation within a marriage. There may even be a unilateral expectation of sex in a given case. That unilateral expectation also cannot be penalised because it is only an expectation. If that expectation is not fulfilled then the spouses have every right to resort to civil remedies. However, when the expectations within marriage become a physical act, and sex is non-consensual, causing harm and injury within the meaning of Section 2(wa) CrPC read with Section 44 of the IPC, that sexual act must become an offence.
Also Read: Marital rape exception: law should not hesitate to call a spade a spade, says Amicus Curiae to Delhi HC

John added that the protection given under Exception 2, to her mind, is not in the nature of Exception but a complete exemption. It is in a nature of immunity which is fictional. She flagged the consequences of this Exception. She pointed illustratively:

• Can a court permit a husband who suffers from a venereal disease, whose wife comes to know about it, and who says she would not participate in a sexual activity, can the husband still claim the exception?
• Assume the wife is suffering from ill health that does not permit her to engage in a sexual activity or which will have a detrimental effect on her health, the daily dose of forced sex has in-fact detrimental impact on her health, can it still be said that the exception is absolute because it is not rape.
• If the wife is gang-raped by the husband along with his friends, will it not be an absurdity that the friends are prosecuted for the rape but the husband cannot be, for there is immunity under the Exception?

John highlighted that the incidents of gang rape are rampant in which the husband is also the participant.
She called the Exception to marital rape an instrument of oppression of the married women and therefore should be struck down. John relied upon the decision of the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors in which the Court held that the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of State action but on the basis of its effect on the guarantees of freedom. She thus submitted that the intended or unintended consequence of the Exception is that a married woman is left remediless for an offence of rape committed by her husband.
Also Read: Amicus Curiae explains before Delhi HC why exception to marital rape should be struck down

At this point, Justice C. Hari Shankar interjected to ask John "Are you saying that the Exception says that a married woman can be subjected to sexual assault without her consent? I would have no quarrel if it had said so. It does not say so".  

Picking from what John argued, that is, "effect on the guarantees of freedom", Justice Shankar sought to know from John as to what freedom has been taken away by the Exception 2 to Section 375? John shot back to say "Freedom to say No". Justice Shankar interjected and said, "Are you saying under the Exception a married woman has no right to say no?". John replied, "Even though it's not expressly stated, the consequence is that the man, in a situation where he is otherwise raping his rape will not be punished for rape only because he is married and because the second part of 375 will not be given effect to. That is all I'm saying".

John added saying Exception 2 is predicated on the marriage.
John took the judges through the decision of the Constitution Bench of the Supreme Court in Joseph Shine vs. Union of India in which it struck down Section 497(adultery) of the IPC as being manifestly arbitrary. From the said judgment, she read out "…a man's marital entitlement to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the 19th Century but they cannot be recognised as being so today…A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non- discrimination on account of sex, and dignity, all of which are affected by the operation of section 497."
Also Read: Marital rape exception: Foundation of consent is right to bodily integrity, argues Amicus Curiae before Delhi HC
John in light of the observations made by the Supreme Court in Joseph Shine case with regard to the marriage, argued that Exception 2 to Section 375 represents an antiquated notion of marriage between unequals and the judgment in Joseph Shine articulates what constitutes a modern marriage when it held that:
"Marriage as a social institution has undergone changes. Propelled by access to education and by economic and social progress, women have found greater freedom to assert their choices and preferences. The law must also reflect their status as equals in a marriage entitled to the constitutional guarantees of privacy and dignity."
John thus submitted that the judgment of the Constitution Bench of the Supreme Court in Joseph Shine has articulated the understanding that today marriage is a union of equals in the eyes of the law.
She further took the judges through the passage in the Joseph Shine case in which the Court observed that in a constitutional regime, marriage is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III of the Constitution guarantees.
John read out from Joseph Shine in which the Supreme Court observed that sexual autonomy constitutes an inviolable core of the dignity of every individual.
The antiquated notion of marriage, John argued, articulated more than 200 years ago by Lord Hale, in which a wife was subordinate to her husband, has shifted across the world.
This common-law understanding of marriage was engrafted into the Indian Penal Code, borrowed from the colonizing country, which itself judicially discarded such an exception to the crime of rape in 1991, John added.

"The colonial masters have done away with that, we continue to hang with it", John submitted.

John emphasised that in the Joseph Shine case, the Court examined the validity of Section 497 keeping the existing social structures that enforce the position of a woman as an unequal participant in a marriage. She requested the Court to apply the judgment in Joseph Shine with full vigor while dealing with exception 2 for the reason of some of the elements being common.

On the role of the Court, John submitted that it is imperative for the Courts to intervene when structures of injustice and persecution, deeply entrenched in patriarchy, destroy constitutional freedom. In doing so, John submitted, the Court is not adopting a paternalistic approach but is, in fact, fulfilling its duty to give effect to rights already enshrined in our Constitution.

John thereafter moved to another argument whether the removal of the exception, leads to the creation of a new offense. She submitted that no new offence would be created if the Exception is struck down for a reason that the offence already exists in the main part i.e. Section 375. To buttress her argument, John relied upon the decision of the Supreme Court in the Independent Thought case.  While dealing with the very same Exception, the Supreme Court in Independent Thought held it was not creating any offence but was bringing the Exception in consonance with the Constitution. It was held:

"One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 IPC, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence. However, 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. In my view, as far as this case is concerned, this Court is not creating any new offence but only removing what was unconstitutional and offensive"
John thus argued that a class of individuals who enjoyed legal 'immunity' from Prosecution will lose it if the Court declares it as unconstitutional. That is not the creation of new offence. It's simply lifting of immunity from Prosecution. She described this immunity from marital rape as 'legal fiction'. She submitted that the Supreme Court did not deal with the general issue of marital rape only because it was not contested before it.

The language of Independent thought, John argued, clearly indicates that this kind of exception is antithetical to modern-day marriage and the rights of a modern Indian woman citizen.

Her arguments remained inconclusive for the day. She would continue tomorrow with her submission. Justice Shakdher asked John also to address the Court on the nature of the relief sought for if the Exception has to be struck down.