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

COUNSEL pleading for the retention of marital rape exception in the Indian Penal Code(IPC), on Tuesday, used the familiar arguments before the Delhi high court bench of Justices Rajiv Shakdher and C. Hari Shankar, in their rejoinder submissions. Their first argument was that Parliament’s wisdom in creating the exception cannot be doubted. Second, they laboured on how the exception protects the institution of marriage. Third, they suggested that the aggrieved wife has other remedies against her husband, if she alleges marital rape.

As the time for rejoinder submissions came in the case of RIT Foundation & Ors vs. Union of India, counsel seeking the retention of marital rape exception sought to persuade the bench on why the arguments of the two amicus curiae before them are vulnerable.

Exception 2 to the Section 375 (Rape) of the Indian Penal Code [IPC] states that the sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. In common parlance, this exception is referred to as ‘marital rape’.

On Monday, 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 22. Prior to her, another amicus, senior advocate, Rajshekhar Rao, argued at length against the Exception 2.

On Tuesday a bench of Justice Rajiv Shakdher and Justice C. Hari Shankar heard the arguments in the rejoinder by advocate R.K. Kapoor, on behalf of an organisation namely ‘Hridey’. Kapoor argued in favour of the retention of the Exception.

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

Countering the submissions of the petitioners and the amici curiae, Kapoor vociferously submitted that Parliament’s wisdom to retain the Exception 2 cannot be doubted. Elaborating his argument, Kapoor submitted:

If rape is taken in absolute terms by saying that rape is a rape, irrespective of the relationship between the parties and irrespective of any other consideration, and all the rapists must be punished alike, since it is a heinous crime, then on this premise, all the rapists should be given the same punishment. If on that premise, Exception 2 is to be struck down, then there would be no need to have all the clauses from (a) to (n) in Section 376(2) of the IPC because the only thing to be seen is whether the ingredients of Section 375 are satisfied. Then on that logic, Section 376B and 376C IPC would also be required to be struck down since they provide lesser punishments than provided under Section 376(2) IPC. If this submission is not acceptable, on the ground that Parliament has rightly given the classification for aggravated form of offences and a higher degree of punishment, then the wisdom of Parliament to retain Exception 2 should also not be doubted”.

Kapoor added that Parliament has rightly provided varied quantum of punishment under Sections 376(2), 376A376AB, 376B, 376C, 376D376DA376DB, and 376E of IPC, depending upon the number of incidental and collateral circumstances, the relationship between the parties, and the age of the women, among other things.

“When the classification is so perfect, then why strike down Exception 2? After, all that is also a part of the classification and scheme of Section 375/376 IPC as formulated by Parliament“, Kapoor asked.

Responding to the argument made by amicus Rajshekhar Rao that even if Exception 2 is there, the husband still is liable to be punished for rape since he is covered within the definition of ‘Relative’ under Section 376(2)(f) of the IPC, Kapoor contended that Parliament was not that unwise that on the one hand it exempted husband under Exception 2 and on other hand, it is covered the husband within the meaning of ‘Relative’ under clause (f) of Sec 376(2) IPC. He referred to Section 498A of IPC, which provides for “Husband or Relative of Husband”.

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

Kapoor submitted that the husband is not covered in any clauses (a) to (n) of Section 376(2) of IPC. He added that it is a well-settled principle of law that no extended meaning can be given to the words used in a statute, nor courts can delete or add words to give a different meaning to a particular word used in a criminal statute.

“Thus no extended meaning can be given to the expression “Relative” or “Trust” as used in Section 376(2)(f) IPC”, Kapoor contended.

Kapoor stressed on his argument that the Exception 2 has been provided to save the ‘Institution of Marriage’. He drew an analogy between the “Institution of Marriage” and the Institution of Judiciary to explain his argument. He said:

“It is not correct to argue that sexual act in marriage relationship is an individual act and the institution of marriage is not going to be suffer in case Exception 2 is struck down. It is not an individual act which is made punishable by law, rather it is made punishable because it is a crime against society. We can take an instance where an individual act falls under contempt of court jurisdiction and it is punished. The victim says that he has already apologized and therefore he should not be punished. Then it is not said that it is an individual act of a particular individual against a particular judge, and therefore may be condoned, but rather it is said that such an act has to be punished to save the institution of judiciary. Similarly, Exception 2 has been retained to protect the institution of marriage”.

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

Kapoor referred to the Hindu Marriage Act to further buttress his argument on preserving the institution of marriage. He submitted that a number of provisions under the said Act would show that an endeavour has been made to protect the institution of marriage. Under Section 13 of the Act, though a provision for divorce is available to either of the parties, Section 14 provides that no petition can be filed unless at the time of presentation of the petition one year has been elapsed since the date of marriage. Likewise, he referred to Section 13B of the said Act. He argued that the institution of marriage is important not only for the couple but for the family which includes children and parents also.

“The relationship between husband and wife is a package of a large number of mutual rights and obligations which are social, psychological, religious, economic etc. It cannot be limited to just one event of consent for a sexual relationship. There are major rights and obligations under the family system which comprise of children born in wedlock, parents, parents-in-law, etc. This is an institution of marriage, a part of the family system. A totally different concept than the stray relation between a sex worker and a stranger. Such a comparison would be rather an insult to the institution of marriage”, Kapoor submitted.

Retention of Exception 2 by Parliament, on the basis of reasonable classification, Kapoor argued, cannot be found fault with.

“Even if it is taken that there is a violation with reference to the right guaranteed under Article 21, even then reasonable classification is permissible to provide varying punishments”, he contended.

Defending the Exception, Kapoor added Parliament is not just justifying the act for which Exception 2 has been provided but only that it may not be punished under Section 376 IPC.

“If the husband has used force or intimidation in the case of so-called marital rape, there are other sufficient provisions in IPC and other statutes. Sexual intercourse between husband and wife in a marital relationship cannot be labeled as rape and at worst it can be called sexual abuse only, which would be clear from the definition of cruelty under the Domestic Violence Act, 2005. This is why Exception 2 has been retained and Parliament has covered such an act of Sexual abuse under cruelty and has taken it out of the purview of Rape”, Kapoor submitted.

He added that the wife cannot compel Parliament to prescribe a particular punishment against the husband to satisfy her ego.

Kapoor went on to submit that there are sufficient provisions in favour of the wife and it cannot be said that Parliament was not mindful of the rights of the wife.

“Offences relating to marriage stand in a different class and this is why Parliament even under the CrPC [Criminal Procedure Code] has provided a different procedure, as would be clear from the provisions of Sections 198198A and 198B of CrPC and again from the provisions of Section 113A113B of the Indian Evidence Act. The similar presumption has been provided for some other offences also viz. Section 111A114A etc., it cannot be said that Parliament should have made similar provisions for presumption under grave offences like murder also. Likewise, it cannot be said that since rape is a heinous crime, parliament should have provided the death penalty in all cases of rape as has been provided under Section 376A, 376AB, 376DB and 376E IPC, but not under 376(2) or under Section 376D(which is a gang rape). Can it be said that there is violation of Article 14? Perhaps not since it is for Parliament to decide such classification”, Kapoor submitted.

Kapoor added that the scheme of CrPC also provides for the compounding of offences under Section 320 of CrPC. All the offences under IPC are not compoundable. Parliament has made a reasonable classification. He said even the offence of bigamy is compoundable. It cannot be said, he submitted, that Parliament has made unreasonable classification.

Kapoor submitted that “It cannot be that one organ (legislature) gives protection to the citizens (exception 2), and another organ (judiciary) not only can take it away but also make it an offence also. It is settled law that what cannot be done directly can also not be done indirectly”.

He contended that the decisions of the Supreme Court in K.S. PuttaswamyNavtej Singh Johar and Joseph Shine are not applicable to the present case. He said in those judgements, the Court did not take away any right nor did it create any new offence.

Kapoor sought to distinguish the decision of the Supreme Court in the Independent Thought judgment. He said it cannot be relied upon, for it is no authority on the matter of marital rape since no arguments were made on this issue and adjudicated upon.

On the power of the High Court, Kapoor argued that the power of the High Court under Article 226 cannot be equated with the power of the Supreme Court under Articles 142 and 141 of the Constitution even if the scope of power under Article 226 is taken as wider than Article 32 of the Constitution.

He concluded his rejoinder by submitting that if some changes are required in the law, the Court must recommend them to Parliament.

The Court will hear the rejoinder in submissions by the remaining respondents on Thursday.