The two judges of the Delhi High Court hearing the challenge to the constitutionality of the marital rape exception made comments and asked questions that appeared to take different views on how to approach the issue during the hearing on Thursday, 13 January.
Justice Rajiv Shakdher suggested that he didn't understand why we continue to "walk on eggshells" regarding this issue, as the relationship of a husband and wife was not relevant to whether a sexual act amounted to rape – consent was the crux of the matter.
However, Justice C Hari Shankar objected to the way in which he felt the arguments had been based more on "outrage" than law.
On two occasions during the hearing, he noted that the issue could not be looked at only from the point of view of the woman who is the victim of a rape, as there are two parties to the offence, and that the court would have to consider the consequences of removing the exception, which has till now prevented non-consensual sex by a man with his wife as rape.
"If we are creating an offence, then the man is going to suffer. No doubt lady suffers, but what about the consequence of the man who is going to suffer for ten years?"Justice C Hari Shankar during hearing on 13 January
Justice Hari Shankar clarified that he was not saying that non-consensual sex by a husband should not be criminalised or punished, but that the legal parameters of whether the high court could strike down this exception had to be considered.
"If the legislature has thought that where parties are married and the only grievance of lady is that she was not willing, if the legislature felt such a case should not be categorised as rape, is it something which is so unconstitutional that we in exercise of our powers under Article 226 can strike it down?"Justice C Hari Shankar during hearing on 13 January
The bench is hearing final arguments on a batch of petitions which argue that the marital rape exception violates Article 14 (right to equality) and Article 21 (right to life) under the Constitution, and therefore needs to be struck down.
Section 375 of the IPC defines the offence of rape. While the section has been amended over the years to remove archaic concepts, emphasise the importance of consent, and cover all relevant sexual acts, it still retains an exception for non-consensual sex by a husband with his wife.
While the apparently divergent views of the judges do not necessarily suggest the way in which the case will be decided, it suggests that they have different approaches to the foundational issues involved.
'Rape Is Rape, and a Rapist Is a Rapist'
Senior advocate Rajshekhar Rao, appointed by the court as amicus curiae to assist with the matter, continued his submissions on Thursday, saying that he could not find a basis for the marital rape exception.
"A rape is a rape and a rapist remains a rapist, and no amount of classification and no amount of verbal jugglery can alter that reality," he said. "In this backdrop, the exception is particularly egregious in as much as it denies a wife the ability to prosecute her husband for non-consensual sex."
He pointed out how the Supreme Court has held that the offence of rape is a serious violation of the right to life under Article 21 and that the marital rape exception takes away a married woman's ability to enforce this fundamental right when her husband commits an act of rape upon her.
Referring to his opening arguments from Wednesday, he said that the law as it stands treats non-consensual sex for the same couple at various stages of their relationship differently – pre-marriage, during their marriage, and post-marriage.
"The only thing which protects the husband [in the second stage] is marriage," he added, but argued there was no justification for this that could stand scrutiny today.
Historically, women were considered the property of their fathers and then their husbands, and marriage was deemed to mean they were giving consent to sexual intercourse, but these lines of reasoning are no longer valid, not least because of the way the Supreme Court has evolved our understanding of fundamental rights.
Rao pointed out that even the definition of rape in Section 375 of the IPC recognises that a woman can decide whether to give consent even for sex with her husband, in the part where it says a man impersonating a woman's husband would be guilty of rape.
He also noted that the courts have expressly clarified that consent cannot be assumed even for sex workers, and so it is absurd that this is assumed for a woman just because of marriage.
Karuna Nundy, who represents the original petitioners in the case, RIT Foundation and the All India Democratic Women's Association, concurred, pointing out that even though there was an expectation of sexual intercourse with a sex worker, once consent was withdrawn, a man could be charged with rape.
While Justice Shakdher agreed that this example showed why it was problematic to use the relationship between a husband and wife as grounds to define what could be considered rape, Justice Hari Shankar said the expectation of sex with a sex worker and a wife are different things.
'Consent Is the Foundation'
According to Rao, the foundational element of the offence of rape is consent, and there is no reasonable basis to distinguish between a married couple and an unmarried couple as a result.
"The law recognises that consent is material but for some reason, finds it to be immaterial for a married woman... A classification based on marital status creates an anomalous situation giving married women less protection against non-consensual sexual intercourse by their husbands as against strangers."Senior advocate Rajshekhar Rao during the hearing on 13 January
Referring to the widely shared video on consent comparing it to asking someone if they want a cup of tea, he asked how it wasn't obvious that this exception was unreasonable.
Justice Shakdher agreed this was the key issue when deciding what was rape or not, saying that in a happy relationship, a couple can do many things, but "you take consent out of it, it becomes rape."
However, Justice Hari Shankar suggested that the court would have to consider that by removing the exception, it was effectively making a specific criminal offence, that is, rape out of something which was not legally considered rape before.
According to Rao, however, striking down the marital rape exception does not create a new offence as non-consensual sex by a man with his wife already met the definition of rape, it was just protected by the law. "What we're doing is, as abhorrent as it sounds, basically putting a premium on marriage so that it is seen as a gate pass," he argued.
He also contested the argument made by the Delhi Government on Tuesday that there are other legal remedies available to a married woman to deal with non-consensual sex, including a criminal case for cruelty under Section 498A of the IPC and under the Domestic Violence Act.
"Is that reason for Your Lordships to step away if you were to conclude that the [marital rape exception in Section 375] is without adequate determining principle," he asked.
Karuna Nundy also said she would be countering this argument about other remedies during her rejoinder. Senior advocate Rebecca John, who was asked by the bench this week to also come on board as an amicus curiae with expertise in criminal law jurisprudence, objected to it as well, saying that these other legal remedies were meant to deal with different issues.
What Happens Now?
The high court will continue to hear from Rajshekhar Rao on the constitutionality of the marital rape exception after 3 pm on Friday. Rebecca John will make her submissions to the court in the coming week, possibly after the central government clarifies its stand on the issue.
In previous written submissions to the court, the Centre had suggested it was not amenable to removing the marital rape exception.
However, on Thursday morning, the Solicitor General informed Justice Shakdher that the central government was considering how to take a "constructive approach" on the matter.
Advocate Monika Arora, who has been representing the Union Government during the hearings, has been asked to get some clarity on whether the government has any specific plans in mind.
She informed the court about the consultation for updation of India's criminal laws that is currently underway by a special committee, but the judges said this was a longer process that they could not factor into their decision.
In the event the judges take differing views on whether they have the power to strike down the marital rape exception, there could be a split verdict as there are only two judges on the bench. In that case, the matter would have to be referred to a third judge of the Delhi High Court for a decision.
In 2018, for instance, a two-judge bench of the Madras High Court saw a split over the legality of a decision of the Tamil Nadu Assembly speaker. The matter had to be referred to a third judge, who sided with one of the two judges a few months later.
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