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

THE Men Welfare Trust (MWT), an organisation which seeks to defend the rights of husbands, urged the Delhi high court bench of Justices Rajiv Shakdher and C. Hari Shankar – hearing the challenges to marital rape exception in Indian Penal Code [IPC] – on Friday not to declare Exception 2 to Section 375 IPC as unconstitutional, because it would hurt the civil liberties of husbands.

The NGO based its claim on the basis of a 2008 Supreme Court judgment on the presumption of constitutionality of statutes in the case of Government of Andhra Pradesh & Ors. vs. Smt. P. Lakshmi Devi. In this case, the constitutionality of Section 47A of the Indian Stamp Act was under challenge.

The scheme of Section 47A, as inserted by the Andhra Pradesh legislature, was to deal with such cases where parties clandestinely undervalued the property to evade payment of the correct stamp duty. This case concerned a petition praying for a declaration that section 47A of the Indian Stamp Act, as amended by A.P. Act 8 of 1998, which required a party to deposit 50 per cent deficit stamp duty as a condition precedent for a reference to the Collector under section 47A, was unconstitutional. The High Court had declared it unconstitutional, but the Supreme Court, on appeal, reversed the order of the High Court and opined that “the impugned amendment is an economic measure, whose aim is to plug the loopholes and secure speedy realization of stamp duty, we are of the opinion that the said amendment, being an economic measure, cannot be said to be unconstitutional”.

Also Read: It cannot be said that Parliament was unmindful of the rights of the wife, counsel tells Delhi HC seeking to retain marital rape exception

The Supreme Court held in this case that this amendment was only for plugging the loopholes and for quick realization of the stamp duty. Hence, it is well within the power of the State legislature vide Entry 63 of List II read with Entry 44 of List III of the Seventh Schedule to the Constitution of India, the Supreme Court had held.

After concluding so, the Supreme Court bench, comprising Justices H.K. Sema and Markandey Katju, went on a tangent on the courts’ power to strike down a law. The bench observed in Paragraph 73 thus:

“However, though while considering economic or most other legislation the Court gives great latitude to the legislature when adjudging its constitutionality, a very different approach has to be adopted by the Court when the question of civil liberties and the fundamental rights under Part III of the Constitution arise”.

Stretching this stray observation of the bench in an unrelated case, the counsel for the Men Welfare Trust, J. Sai Deepak, claimed that the exception to marital rape has to continue in the IPC because its removal is likely to affect the civil liberties of the husbands.

MWT is opposing the petition on the ground that the Court is not an appropriate/competent forum to address the issue raised in the petitions because it can not strike down a law or a provision to create a new offence or expand the scope of an existing offence under Article 226 of the Constitution. Besides, there exist remedies in the existing laws to deal with the act of ‘spousal sexual violence’, it claimed.

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

Deepak submitted that there is an intelligible differentia that runs through the scheme of the statute, and therefore, since context and consent go hand in hand and marriage and marital institutions are the basis for such intelligible differentia, it is ipso facto proof of lack of manifest arbitrariness. He added that the petitioners have challenged Exception 2 to Section 375 along with Section 376B of IPC and Section 198B of the Criminal Procedure Code, which itself is indicative of the awareness among the petitioners of the special treatment in the legislation and the basis for the special treatment is the existence of the institution of marriage.

He referred to Section 377 of the IPC to submit that while there exists an exception regarding the institution of marriage in Section 375, no such exception exists in Section 377. He took the judges through the Protection of Women from Domestic Violence Act, 2005 [DV Act] to argue on the issue of adequacy and/or inadequacy of the remedies against sexual abuse. He emphasised Sections 3 and 19 of the DV Act. He submitted that section 3 of the DV Act already defines “sexual abuse” and includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.

“It could be argued that this is vague and broad but it is my submission that it all encompasses, and therefore it has ‘catch-all’ effect”, he argued.

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

Countering the submissions of the petitioners that the remedies under the DV Act are inadequate more so when they are in the nature of civil remedies, Deepak took the judges through section 19 of the DV Act which speaks of the residence orders a magistrate can pass apart from the protection orders. He emphasised section 19(2) of the DV Act which states: “The Magistrate may impose any additional conditions or pass any other direction which he may deem reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such aggrieved person”.

“Typically under 19(2) of the DV Act, based on what is known as Domestic Incident Report (DIR), complaints are registered under either 498A and in some cases under 376B [of the IPC] and there is a reason for this because 376B which speaks of sexual intercourse without consent between the former husband and the wife/or former wife, speaks of the decree of separation or otherwise and therefore based on the DIR, it is possible for the magistrate to come to the conclusion that even though there exists no decree of separation which declares formal separation between the parties if the history of the relationship reveals de facto separation, it is possible for 376B to be registered. So here is a situation where even these options are possible. So it is not a question of absence of a remedy, it is a question of perception of the inadequacy of the remedy which does not fall within the realm of unconditionality”, Deepak submitted.

He argued that if the marriage forms the basis of a difference, it automatically answers the question of intelligible differentia and the reasonable classification within the meaning of Article 14.

Deepak then went on to cite a couple of judgements to buttress his argument on the high threshold that a court must consider before it arrives at a conclusion of the unconstitutionality of a statute under Article 14. He heavily relied upon the decision of the Supreme Court in Government Of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi in which it was held that the Court could declare a statute to be unconstitutional only when there can be no manner of doubt that it is flagrantly unconstitutional, and there is no way of avoiding such decision.

Deepak, in view of the P. Laxmi Devi judgement, submitted that the immunity which is provided in Exception 2 to Section 375 IPC is to protect the civil liberty of the husband because of the nature of the relationship between the husband and the wife, and thus the Court must try and protect the provision which protects the civil liberty taking into account the nature of the institution, as opposed to the taking away the immunity which will have the effect of shrinking the scope for civil liberty.

“Doing away with this immunity will have the effect of enlarging the offence”, he argued.

Deepak cited the decision of the Constitution Bench of the Supreme Court in Mohd. Hanif Quareshi & Others vs. The State Of Bihar (1958), in which, it was observed that “the pronouncements of this Court further establish, amongst other things, that there is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation”.

“If the legislature is entitled to recognise the degree of harm, it is entitled to treat the act of sexual violence in four different manners under chapters 16, 20, 375, 376B, 376C, 377, 498A of the IPC apart from the DV Act. Thus, these gradations are entirely within the remit and permissible to the legislature.”, Deepak submitted.

He cited the decisions by the Delhi High Court in Beeru vs. State Nct Of Delhi (2013), and by the Supreme Court in Bombay Dyeing & Manufacturing Co., Ltd. vs. The State Of Bombay & Ors. (1957), State Of M.P vs. Rakesh Kohli & Anr. (2012), and Kalpana Mehta & Ors. vs. Union Of India & Ors. (2018) to make the similar argument that the statute enacted by Parliament or a state legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand.

Deepak referred to the Standing Committee report of Parliament in which it is stated that some members had suggested that somewhere there should be some room for the wife to take up the issue of marital rape. It was also felt that no woman takes marriage so simple that she will just go and complain blindly. Consent in marriage cannot be consent forever. However, several Members felt that marital rape has the potential of destroying the institution of marriage. The Committee felt that if a woman is aggrieved by the acts of her husband, there are other means of approaching the court. Deepak, in light of this report, submitted that the DV Act was enacted precisely for this purpose for it recognises spousal sexual violence, and it provides for the combination of both civil and criminal remedies, apart from measures of reconciliation.

He cited from the Law Commission of India Report which refused to recommend the deletion of the Exception because it would have amounted to excessive interference with a marital relationship. The report reads:

“Representatives of Sakshi wanted us to recommend the deletion of the Exception, with which we were unable to agree. Their reasoning runs thus: where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years/ We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship”.

Deepak read out from a Parliamentary report on Women Empowerment which reads:

“A new section 376B has been inserted which provides that if a man has sexual intercourse with his own wife, living separately under a decree of separation or otherwise, the punishment would be a minimum term of two years extendable to seven years and fine. This provision has been kept as bailable keeping in view that there is still a hope husband and wife would unite again”. He thus submitted that the legislative intent is amply clear in providing the Exception 2 to Section 375.

He added that a Lakshman Rekha has to be drawn by the Court in light of the judgments cited that limit its powers to deal with the present issue.

Deepak explained to the judges the distinction between the laws in India and the United Kingdom with regard to the presumption of innocence. He submitted that in India, under Section 114A of the Evidence Act, there is a presumption in favour of the victim of the rape. In the UK, regardless of the situation, the burden on the victim is fairly high wherein there is a detailed inquiry as to whether there was consent, how was consent withdrawn, what were the circumstances, and so on. Referring to the position in the UK, Deepak submitted:

“The Sexual Offences Act 2003 requires the defendant to show that his belief in consent was reasonable. In deciding whether the belief of the defendant was reasonable, a jury must have regard to all the circumstances, there is a presumption that the victim did not consent to sexual activity and the defendant did not reasonably believe that the victim consented, unless he can show otherwise. Examples of circumstances where the presumption applies are where the victim was unconscious, drugged, abducted or subject to threats or fear of serious harm”.

Winding up his submission, Deepak submitted that these are the extreme situations in the context of UK law where the burden is reversed.

The Court will hear the matter on Monday when Senior Advocate Colin Gonsalves and Advocate Karuna Nundy will make their rejoinder submissions for the petitioner.