Exception to marital rape ought to go in order to enhance substantive equality, Delhi HC told

Amicus Curiae, Rebecca John, on Monday, made a fervent plea before the Delhi High Court to prefer substantive equality over legal formalism to strike down the exception to marital rape in the Indian Penal Code(IPC). This, she argued, would be in line with a series of recent judgments of the Supreme Court, explains PARAS NATH SINGH


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.

Senior advocate and amicus curie Rebecca John completed her arguments that lasted for four days. She had begun her submissions on January 19, which continued on January 2021, and today.

When John rose to resume her arguments on Monday, Solicitor General (SG) Tushar Mehta, with the leave of the Court, intervened to reiterate the request of the Union Government that it would require a reasonable time to formulate its stand on the issue of marital rape after consulting with the stakeholders. He added that it would not be possible for the union government to respond to the petition immediately, especially when there is no imminent threat that something is going to happen to someone.

Responding to SG Mehta, Justice Rajiv Shakdher said that the court would be happy if the union government quickly tells the bench, also comprising Justice C. Hari Shankar, whether they are agreeing with the petition.  He explained that the court cannot take cover under the lack of urgency, once it starts hearing a case, and gave the government one more week to reveal its stand on the petitions.

Also read: Amicus Curiae explains before Delhi HC why exception to marital rape should be struck down

Existing remedies inadequate

The bench then turned to John asking her to resume her submissions. She began her submissions, countering the averments advanced by the Delhi Government that remedies exist within the law that adequately address the crime of forced non-consensual sex upon married women. She took the judges through the aims and objects of Section 498A of the Indian Penal Code [IPC], The Dowry Prohibition Act, and The Protection of Women from Domestic Violence Act, 2005.

John contended each of these offences are stand-alone offences, different in nuance and understanding. She added that a person who has committed rape would not be prosecuted under Section 498A (Husband or relative of husband of a woman subjecting her to cruelty) of IPC. A woman who has died on account of dowry will be prosecuted under Section 304B (dowry death) of IPC, and section 498A may be an additional offence. She thus argued that the ingredients of Section 375 (rape) are separate, and there is no reason why 498A can be used as a substitute for section 375 IPC. It can be used in addition, but it is not a substitute.

John argued that the structure of criminal law is that every offence is distinct and there are no overlapping offences, though some ingredients may be common.

“There could be base categories offences and there could be aggravated offences. There could be some elements that are common, some elements which are wholly uncommon and therefore to say that a woman/wife has equal and efficacious remedy is not a tenable argument because those remedies operate in a very different space”, John submitted.

An act, John averred, can constitute distinct multiple offences; to invoke the lesser offence and not the graver offence is neither permissible in the facts of a case nor is something that the statutes allow.

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

Gujarat HC pending case

John took the judges through the Gujarat High Court’s decision in Nimeshbhai Bharatbhai Desai vs. State of Gujarat (2018), in which the High Court had the occasion to comment on the issue of marital rape. Justice J. B. Pardiwala had said that the law must uphold the bodily autonomy of all women, irrespective of their marital status. She read Paragraph 166 of that judgment as follows:

“166. The exemption given to marital rape, as Justice Verma noted, “stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands”. Marital rape ought to be a crime and not a concept. Of course, there will be objections such as a perceived threat to the integrity of the marital union and the possibility of misuse of the penal provisions. It is not really true that the private or domestic domain has always been outside the purview of law. The law against domestic violence already covers both physical and sexual abuse as grounds for the legal system to intervene. It is difficult to argue that a complaint of marital rape will ruin a marriage, while a complaint of domestic violence against a spouse will not. It has long been time to jettison the notion of ‘implied consent’ in marriage. The law must uphold the bodily autonomy of all women, irrespective of their marital status.”

In addition, John also brought to the notice of the Delhi High Court that the Gujarat High Court has last month issued a notice seeking to declare Exception 2 to Section 375 of the IPC as unconstitutional, in the case of Jaideep Bhanushankar Verma vs. Union of India. In this case, the Gujarat High Court opined that “it is high time that a writ court undertakes the exercise of considering, whether the Exception-2 to Section 375 of the IPC could be termed as manifestly arbitrary and makes a woman’s fundamental right to sexual autonomy subject to the whims of her husband”.

 Also read: Marital rape exception: Foundation of consent is right to bodily integrity, argues Amicus Curiae before Delhi HC

Legal formalism vs. substance

Referring to the twin-test classification under Article 14 of the Indian Constitution, John contended that in light of the recent decisions of the Supreme Court, merely applying this test is fraught with the risk of elevating form over substance.

To buttress her argument, John cited from Navtej Singh Johar vs. Union of India (2018):

“409. Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula : the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values—of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in State action. As our constitutional jurisprudence has evolved towards recognising the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavour and in every facet of human existence.”

John cited another decision of the Supreme Court in State of Tamil Nadu and Another vs. National South Indian River Interlinking Agriculturist Association (2021), in which the Court reiterated its formulation about the twin-test under Article 14 in Navtej Singh Johar:

“21. One of us (Dr D.Y. Chandrachud) in Navtej Singh Johar v. Union of India accentuated the inadequacies of the two-pronged test which seeks to elevate form over substance. The over-emphasis on the ‘objective’ of the law, instead of its ‘effect’ – particularly when the objective is ostensible – was observed not to further the true meaning of the equality clauses under the Indian Constitution. The traditional two-pronged classification test needs to be expanded for the Courts to undertake a substantive review of Article 14 violations, away from the formalistic tendency that the twin test leans towards. Within the broad parameters of the two-pronged test, we find it imperative to undertake a much more substantive review by focusing on the multi-axle operation of equality and non-discrimination.”

John thus submitted that the Court needs to keep these decisions in consideration while applying the twin-test under Article 14 to examine the validity of Exception 2 to Section 375.

“We have to go beyond legal formalism to achieve the true value of equality which has been the foundational basis of our Constitution and if we strictly stick to the twin test we may be guilty of elevating form over substance”, she submitted.

John referred to India’s obligations under international conventions, especially under the Convention on the Elimination of all Forms of Discrimination Against Women. She argued that it is a settled position of law that international conventions and laws can be read into our domestic law. In support, she cited the decisions of the Supreme Court in Vishaka & Ors. vs. State of Rajasthan (1997) and Independent Thought vs. Union of India (2017)In the former, it was held: “The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse. … The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the field when there is no inconsistency between them …”. In the latter, the Supreme Court recognised that India’s international obligations were legally enforceable.

Summing up her submission, John submitted that the effect of Exception 2 to section 375 IPC is to disregard the wife’s consent, her right to her bodily autonomy, and her right to say No. She added that as against marital expectations, the wife has the right to decisional sexual autonomy, and therefore in deciding between the expectation vs. right, it is the right of the women which must be upheld.

She submitted that the continuation of Exception 2 to section 375 is not constitutionally permissible in light of the decisions of the Supreme Court in Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2018)Navtej Singh Johar vs. Union of India and Joseph Shine vs. Union of India (2018).

“Whatever may be the outcome of this challenge, I do believe these proceedings are not adversarial in nature”, John submitted. She added, “To all those who asked me to recuse because I have an opinion … the challenge is only to be tested on the anvil of constitutionality”.

If the Exception is constitutionally sound, it remains, and if it is not, it goes, she submitted.

It came as a revelation to the Court that John has been receiving hate mails because she has an opinion on the issue of marital rape and thus she must recuse from the case.

Justice Shankar interjected to say, If having an opinion on something is a ground to recuse, then I think we all should recuse. Every intelligent person has an opinion”.

John also made a submission on the exercise of judicial discretion in sentencing. She submitted that prior to the 2013 Criminal law amendment, the proviso to Section 375 allowed for the exercise of judicial discretion in sentencing. This judicial discretion was removed by the amendment of 2013 and replaced with a mandatory minimum sentence of seven years, which was enhanced to 10 years in 2018.

John submitted that it is now recognized across the world that high mandatory minimum sentences can result in a higher rate of acquittals. She submitted that a Sentencing Commission could be constituted independently, or under the aegis of the Law Commission of India, to establish detailed sentencing guidelines with in-depth public and expert consultation.

After John completed her arguments, advocate Nandita Rao, for the Delhi Government, in rejoinder, submitted that in the decisions of the Supreme Court in Navtej JoharPuttaswamy and Joseph Shine, the accused came to the Court saying that State cannot come to their private bedroom and make it a crime.

“Here the wife has come to your lordships. I don’t think this is so much an issue of privacy. Those were judgments on the issue of the privacy of the accused. I don’t know how those judgments are relied upon by the complainant”, Rao submitted.

Before the judges could rise for the day, they were presented with yet another intervention application, filed by activist Madhu Kishwar. Appearing for her, advocate J. Sai Deepak sought permission to argue for 10 minutes, which the Court declined as it did not allow the interventions filed by other parties during the preceding dates.

The Court will continue to hear the matter on Tuesday as the respondents are expected to make submissions in rejoinder.