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

THE Delhi High Court on Friday 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.
Amicus curiae and senior advocate, Rajshekhar Rao, resumed his arguments that remained inconclusive today.
Rao began his arguments for the day before a division bench of Justices Rajiv Shakdher and C. Hari Shankar by playing a short video that compared sexual consent to a cup of tea. Aware of the video, Justice Shakdher remarked, “Almost every young woman has seen this video”. At this Rao remarked, “Your Lordship is right but fortunately or unfortunately I have seen it yesterday only”.
The video explains the concept of ‘consent’, inter alia, as follows-
” If you are still struggling with consent, just imagine instead of initiating sex you’re making them a cup of tea.
You say: “hey would you like a cup of tea”, and they go: ‘oh my God I would love a cup of tea, thank you’. Then you know they want a cup of tea.
If you say:’ hey would you like a cup of tea and they’re like: “Ahhh, you know I’m not really sure’; then you can make them a cup of tea or not but be aware that they might not drink it. And if they don’t drink it then, and this is an important bit, don’t make them drink it. Just because you made it doesn’t mean you’re entitled to watch them drink it.
And if they say: ‘no thank you’; then don’t make them tea at all. Just don’t make them tea, don’t make them drink tea, don’t get annoyed at them for not wanting tea, they just don’t want tea, ok?
After playing the video, Rao submitted that this is what Section 375 incorporates. It incorporates the ability of a woman to say ‘No’. It incorporates a situation in which a woman may have said ‘Yes’ but the law decides that she cannot say ‘Yes’ because either she is immature or for various other reasons. The law steps in as parens patriae and says ‘Yes’ is also a ‘No’.
Rao added that the law goes a step further. He refers to Section 376C (Sexual intercourse by a person in authority) to make a point as to how the law treats sexual acts differently in different circumstances. He said while section 375 is a rape, section 376C is sexual intercourse by a person in authority.
“The physical act perhaps would still be the same, the difference is rape is without consent. In section 376C there is perhaps an element of consent since the section uses the word “induce or seduce any woman. However, here law steps in and makes a moral judgment in a situation where consent is given because the law takes the position that this consent itself has a legal problem because it tantamounts to being abused by a person in a slightly higher position in the hierarchy. The very same statute was amended after the Verma Committee report which said marital rape be criminalised but the legislature chose to omit that portion”, Rao submitted.
Stressing on the element of ‘consent’, Rao argued that in one case consent is the most relevant factor since the absence of consent amounts to rape, except where the victim is the wife and the perpetrator is the husband.
The presence of consent is irrelevant because of the relationship between the parties. One asks oneself what is the treatment that law gives or what can be the justification for the exception. Surely it cannot be the institution of marriage, Rao contended.
Rao argued that the law should not hesitate to call a spade a spade, and that it should not deny the ability to the wife to prosecute her husband for the rape.
Unimpressed with the submission, Justice Shankar pointed out that there was a slight inaccuracy in the argument of Rao since the statute only says if the victim is the wife and the perpetrator is the husband, it is not rape. If the statute had said consent was irrelevant it would have been very difficult to support it, because it would have been totally weird then.
 “With the greatest respect, consent is not the issue here. I have told it several times earlier also. According to me, there is a differentia and that differentia has not been made out on the basis of consent or no consent or anything like this”, Justice Shanker told Rao.
Justice Shanker was referring to differentia on the basis of a marital relationship. Whether such a differentia is intelligible to satisfy the test of Article 14 of the Indian Constitution is the issue before the Court.
Rao submitted that to determine whether there is an intelligible differentia, the court will have to look into the basis of such a differentia. The primary basis is the relationship between husband and wife. Justice Shankar shot back: “No doubt about it”.
Rao contended that the test of Article 14 is that the law has to be non-arbitrary. Classification is this couple is married, this couple is unmarried, this couple is married but separated; three buckets of classifications. Justice Shanker interjected and said this distinction is not something which we have to examine.
Continuing with his arguments, Rao submitted that the courts have held that marriage is a partnership of equals. The woman is not a man’s chattel. The Court has also held that if a woman does not cohabit with a man despite the marriage, his remedy is not to beat her up. His remedy is to seek restitution and in the event, he gets a decree of restitution even then the law says he cannot sleep with her if she does not want to. At that stage, the remedy is to seek attachment of property, not of her body, which incidentally is also her property, as held by the Court. What remedy does the man have? He has the remedy of separation or dissolution. Rao, thus, contended that even in the case of restitution of conjugal rights, the law does not give authority to sleep with the wife forcefully. Rao thus asked whether in the same legal sphere is it permissible to suggest that the husband can still sleep with his wife without her consent?
Rao submitted that Exception 2 to section 375, thus, practically obliterates her consent altogether.
“Can such a distinction based on the relationship between the parties be allowed to deny the ability of a married woman to prosecute her husband for the rape?”, Rao asked.
Referring to section 376C, Rao said if in 376C, the existence of a consent is supplanted by improperly obtained consent then the exception seems to have, on the face of it, no regard to the consent of the wife.
Rao contended that the Court has to examine whether the Exception has any constitutional basis and whether it can stand the touchstone of laws that the Courts have interpreted over seven decades. He said the whole basis for the law of rape is consent or the lack thereof. “The parliamentary committee and others think it will affect the institution of marriage but for Your Lordships, the only test is whether it stands the scrutiny of the Constitution“, Rao said.
Also Read: Amicus Curiae explains before Delhi HC why exception to marital rape should be struck down
Rao relied upon the decision of the Supreme Court in Joseph Shine vs. Union of India (2017), in which the Supreme Court struck down Section 497 (adultery) of IPC as being manifestly arbitrary. In this judgment, the Supreme Court observed: Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written”.
Rao cited the Supreme Court’s observation from the said judgment which said that the Constitution is abhorrent to any kind of regressive approach.
 “The Court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable”, Rao submitted, reading from the judgment in Joseph Shine.
Rao argued that these observations of the Supreme Court squarely apply to the present case. He read out from State of M.P. vs. Madanlal (2015), in which the Supreme Court held that the dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay.
Rao read out the following passage from Pawan Kumar v. State of H.P. (2017):
“In a civilised society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescension. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context.”
Rao submitted that the law says no one can compel a woman to make love. This is the principle behind 375, except for the exception. The exception condescends. What is particularly insulting is that this condescension comes from the legislature.
Rao vehemently contended that the rationale of Exception 2 to Section 375 suffers from the absence of logicality of approach and, therefore, it suffers from the vice of Article 14 of the Constitution, being manifestly arbitrary.
In addition, Rao attacked marital rape as being violative of the married woman’s right to dignity, privacy, and right to let alone.
Citing from K.S. Puttaswamy vs. Union of India (2017), Rao submitted that privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value, he told the bench.
“As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right”, Rao read from the Puttaswamy judgment.
Rao also cited the decision of the Supreme Court in National Legal Services Authority [NALSA] vs. Union of India (2014)in which the Court had said, “The concept of equality in Article 14 so also the meaning of the words “life”, “liberty” and “law” in Article 21 have been considerably enlarged by judicial decisions. Anything which is not “reasonable, just and fair” is not treated to be equal and is, therefore, violative of Article 14″.
Rao urged the Court to apply this test of ‘reasonable, just and fair’ to examine the Exception 2 to Section 375 IPC. He said it would be the simplest test. He also cited authorities on the judiciary’s role in interpreting the Constitution dynamically. He contended that in the absence of contrary legislation, municipal courts in India should respect the rules of international law.
“In Kesavananda Bharati vs. State of Kerala (1973), it was stated that in view of Article 51 of the Constitution, the Court must interpret the language of the Constitution, if not intractable, in the light of the United Nations Charter and the solemn declaration subscribed to it by India”, Rao argued citing the NALSA judgment.
The bench, before closing the arguments for the day, told the Union Government’s counsel Monica Arora that the Court would like to know the stand of Centre and that it must be ready to argue on Tuesday.
Since Rao’s arguments remained inconclusive, he will continue the same on Monday.