On Friday, 28 January, the Delhi High Court heard the last rejoinders by the organisations supporting the retention of the marital rape exception, with advocate J Sai Deepak concluding his submissions for the Men's Welfare Trust.
The court, next week, will hear the final rejoinders from the main petitioners in the case, who have argued that this exception violates Articles 14 and 21 of the Constitution.
The bench has also asked the central government to clarify its position on the matter at the earliest and to inform the court if it still stands by its previously submitted affidavits (which say that it is not in favour of removing the exception without broader consultation).
The arguments in favour of the exception by Sai Deepak for MWT and senior advocate RK Kapoor for NGO Hridaya (which has connections to the Save Indian Family Movement, an association of 40 NGOs across the country) were broadly along the same lines, though Sai Deepak elaborated on them in more detail.
Here's why they argue that the marital rape exception should not be struck down by the high court.
'Striking Down Exception Enlarges Scope of Rape Provision, Creates New Offence'
This is a key technical argument that needs to be addressed by the court, because it can become a stumbling block to striking down the marital rape exception, even if, on substance, the court finds that the exception appears illegal.
Section 375 of the IPC defines the offence of rape, saying that a man commits rape if he performs certain sexual acts with a woman without her consent (there are seven circumstances relating to the woman's will and consent that have to be satisfied for the provision to apply).
The Section also has an exception, Exception 2, which says that "Sexual intercourse or sexual acts by a man with his own wife...is not rape."
According to Sai Deepak:
"Let's assume even if Exception 2 is unconstitutional, [removing the exception] has the incidental effect of enlarging the scope of an offence. Even then, the judiciary will have to cede space to the legislature in respect of the doctrine of separation of powers, because there is a very clear and direct consequence as it is an exception to the existing penal provision."
He said that the legislature had specifically chosen not to do this over the years, including when the Justice Verma Committee recommended the removal of the exception back in early 2013.
Kapoor also argued that the courts cannot create a new offence, pointing out that in its 2017 judgment in the Independent Thought case, where it modified the wording of Exception 2 so that it could not apply to child brides, the Supreme Court had also said that the expansion of an offence is not possible.
They both also argued that when the Supreme Court modified the wording of the exception in Independent Thought, it was only bringing it in line with the POCSO Act, so it was a very different exercise than what was being asked here.
Senior advocate Rebecca John, who had been appointed by the bench as an amicus curiae (ie an independent expert) had previously explained why removing an exception like this only amounts to removal of an immunity granted to a class of persons, and should not be considered the creation of a new offence.
She had noted that while bringing the exception in line with the POCSO Act was vital to the Independent Thought decision, the judges had also said there that they were making the amendment to bring it in consonance with the Constitution, not just POCSO.
When the immunity for husbands was removed by the English courts in 1991, they had also observed that this should not be considered the creation of a new offence, John pointed out.
'Legislature Should Decide What to Do – And Current System Has Rationale'
According to both Kapoor and Sai Deepak, this is not an issue the judiciary should be getting into, as it is in the domain of the legislature (i.e. Parliament).
Citing past decisions of the Supreme Courts, Sai Deepak argued that the courts can only intervene when the law is blatantly unconstitutional, but that isn't the case here.
He suggested that Indian law already creates sufficient legal remedies for married women forced into non-consensual sex by their husbands. The IPC deals with four different kinds of sexual offences against a woman:
Rape by a rank stranger (Section 375)
Rape by person in position of authority (Section 376C)
Sex without her consent by a husband where the couple are separated (Section 376B) – not termed rape
Offences by the husband while being a husband (Section 498A)
There is also the Domestic Violence Act, he argued, which specifically deals with sexual abuse by a husband with his wife. [Note: the Domestic Violence Act does not make such sexual abuse a crime, but if a wife obtains a protection order from a court citing sexual abuse, a violation of that order by the husband would be a crime.]
While the petitioners may argue that these remedies are inadequate, Sai Deepak said that this does not mean that the marital rape exception is unconstitutional.
The legislature has made this different classification of sexual offences for a reason: that marriage creates a special relationship. Again, while the petitioners may disagree with this logic, that can only be a different point of view, not grounds to say the classification is unconstitutional, the lawyer for MWT argued.
The Institution of Marriage and How it Allows for Special Treatment
Both Sai Deepak and Kapoor pointed to judgments of the Supreme Court which had viewed marriage as creating a special relationship between the parties, and that this, therefore, allowed for the different classifications of sexual offences against a woman.
It was wrong to say that Section 375's definition of rape applies across the board to any instance of a woman not giving consent, they argued, as the legislature had clearly intended differential treatment based on marriage.
"Act plus environment or context is rape. Therefore, consent and context cannot be separated," Sai Deepak told the bench on Thursday.
"Whether consent five minutes before or after the marriage, what does it matter, a lot of things come into picture. Marriage has changed everything," he argued.
Responding to questions from the bench of Justices Rajiv Shakdher and C Hari Shankar, on Friday Sai Deepak also took the judges in detail through the Parliamentary Standing Committee's report in 2013 which rejected a suggestion to get rid of the marital rape exception, as well as a Law Commission report in 2000 which also did the same.
Both cited the protection of the institution of marriage as the reason for retaining the exception. "The legislative intent is crystal clear, we may disagree with it but it is crystal clear," Sai Deepak said.
He did clarify that his clients did agree that there needs to be a recognition of spousal sexual violence, but that there was already a set of legal remedies for this and if any improvements were to be made to them, that was up to the legislature.
During her submissions, Rebecca John had noted that Justice DY Chandrachud's opinion in the Supreme Court judgment striking down adultery as an offence under the IPC, had expressly said that ideas of marriage that emphasise dominance of a husband over his wife cannot be compatible with the Constitution.
The court will now hear rejoinders from senior advocate Colin Gonsalves, who represents one of the petitioners, on Monday, 31 January. He will be followed by Karuna Nundy, who represents the original petitioner who filed this case in the Delhi High Court in 2015, the RIT Foundation.