The Delhi High Court on Friday, 21 January, continued to hear from senior advocate Rebecca John on the marital rape exception, with the amicus curiae addressing questions posed by the judges the previous day.
Justice C Hari Shankar had asked John, who is assisting the court as an expert in criminal law, whether she would still say that the marital rape exception is unconstitutional if instead of being an exception to Section 375 of the IPC (which defines the offence of rape), it were part of the main definition itself.
This question is important for the court, since it has been argued that eliminating the marital rape exception would lead to creation of a new offence. This 'new offence' argument is predicated on the idea that the core definition of rape under the IPC as it stands cannot possibly include forced sex by a man with his wife.
On the contrary, John had argued that the core of the offence of rape under Section 375 is non-consensual sex by a man with a woman, which would mean even forced sex by a husband with his wife technically falls within the definition.
Exception 2 to Section 375 creates an immunity for married men, and removing that immunity does not change the core offence or create a new offence, John had argued on Thursday.
On Friday, she answered that even if the exception was considered baked into the main definition, it would still be unconstitutional. "An offence is a combination of actus reus and mens rea," she argued. "The nature of the offence does not change because a class of people are excluded or not excluded."
Justice Hari Shankar once again raised his objection that looking at consent as the fundamental issue for the offence of rape only looked at the point of view of the woman, even though an offence involves other ingredients as well: a perpetrator, victim, act, and punishment.
John countered this by saying that the offence of rape was one of the gendered offences in the IPC, which can only be committed against a woman. As a result, even if the exception had been baked into the main provision, it would still be unconstitutional.
Does Marriage Give a Man a Right to Sex?
Justice Hari Shankar then said that in his opinion, there is "a qualitative difference between the sexual equation between parties who are married and those who are not".
According to him, "Where parties are married, there is a right to expect sexual relations from both sides. There is no such right in a case where parties are not married."
As a result, this meant that there was an intelligible differentia created by marriage, and so it was not obviously wrong for the legislature to treat marital relationships differently, and therefore retain the marital rape exception.
He later tried to amend this to say it was not a right to sex but an expectation of sex that a man had in a marriage.
John's answer to the question was emphatic:
"There can be an expectation of conjugal relations. Having an expectation is not wrong. Both sides can have an expectation. However, the expectation cannot result then in the husband having forcible sex with the wife. That is my complete answer."
The senior advocate explained that addressing this expectation involved a dialogue between the parties, and if this didn't resolve the issue, then maybe even a civil remedy like divorce. But even if the marriage were to break down, even if the woman was being unreasonable, the man could not use the expectation to justify forcibly having sex with his wife.
"I don't want to underpitch this," John told the court. "This is about a man exercising dominance over his wife despite her saying no."
John did state that she had serious reservations about the issue of sentencing in rape cases, with recent amendments increasing the minimum punishment for those convicted of such offences.
Institution of Marriage is Not Under Threat
She then addressed the second question posed by Justice Hari Shankar on Thursday, about whether a marital rape exception in a gender neutral rape law would also be unconstitutional.
She first took the court through the various provisions in the IPC and other laws like the Domestic Violence Act meant to protect women, given the reality of inequality faced by women in marriages. Getting into this issue would be creating a false equivalence between the reality of what men and women go through in a marriage.
The senior advocate noted that gender neutral laws in countries around the world nonetheless recognised acts of rape as being only committed by a man against another person, regardless of the latter's gender.
If the rape law were fully gender-neutral, she argued, then a marital rape exception would nonetheless be unconstitutional because it would not be protecting the rights of any one party, but instead the 'institution of marriage'.
This is the ground on which the Law Commission had rejected calls for removal of the marital rape exception in the past, as noted by the central government in its affidavit filed on 12 January in this case. This idea was also cited by Parliament when refusing to implement the Justice Verma Committee's recommendations for reform of the law on rape in 2013.
However, John pointed out that the Supreme Court in the Independent Thought judgment in 2017 (which ensured the marital rape exception could not be applied to wives who were minors) had already addressed this issue, with Justice Madan Lokur writing there:
"Marriage is not institutional but personal – nothing can destroy the ‘institution’ of marriage except a statute that makes marriage illegal and punishable. A divorce may destroy a marriage but does it have the potential of destroying the ‘institution’ of marriage? A judicial separation may dent a marital relationship but does it have the potential of destroying the ‘institution’ of marriage or even the marriage? Can it be said that no divorce should be permitted or that judicial separation should be prohibited? The answer is quite obvious."
Submissions to Continue on Monday
The amicus also addressed some queries by Justice Shakdher about whether the provisions for attempt to commit an offence would apply if the marital rape exception were struck down (yes) and whether provisions like Section 376B of the IPC (which makes sex by a husband with a separated wife without her consent punishable) would also have to go.
John noted in passing that this latter provision was interesting, because it was a compromise added in 2013 when Parliament refused to strike down the marital rape exception and acknowledged that even after marriage a woman had the power to consent or not.
She told the court that on Monday, she would address the argument made by the Delhi Government, that there are sufficient legal remedies for a married woman forced into non-consensual sex by her husband, including filing a criminal case under Section 498A of the IPC for cruelty.
She indicated that these provisions don't serve the same purpose as Section 375, but will explain this in more detail when the hearing resumes after 3 pm on 24 January.
Once she completes her arguments, the court will hear rejoinders from petitioners and intervenors, including some men's rights groups that have argued against the removal of the exception.
The judges have also repeatedly asked the Centre to clarify its own stance on the matter, and are likely to push for a response from them again next week.
While the Modi government had filed an affidavit in the court on 12 January saying this issue could only be taken up after larger consultations, which it is currently doing for criminal law in general, Solicitor General Tushar Mehta had informed the bench that the government was considering a more "constructive approach".
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