Delhi High Court
Farhan vs State & Anr on 11 May, 2022
$~J-1 to 4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on 21.02.2022
Judgment pronounced on 11.05.2022
+ W.P.(C) 284/2015 & CM Nos.54525-26/2018
RIT FOUNDATION ..... Petitioner
Through : Ms Karuna Nundy with Mr Mukesh
Sharma and Mr Raghav Awasthy,
Advs.
versus
THE UNION OF INDIA ..... Respondent
Through : Mr Tushar Mehta, SG and Mr Chetan
Sharma, ASG with Ms Monika Arora,
CGSC along with Mr Vinay Yadav, Mr
Amit Gupta, Mr Akshya Gadeock, Mr
Rishav Dubey, Mr Rajat Nair, Mr
Sahaj Garg and Mr R.V. Prabhat, Advs.
for UOI.
Mr Rajshekhar Rao, Sr.
Advocate/Amicus Curiae with Mr
Karthik Sundar, Ms Mansi Sood and
Ms Sonal Sarda, Advs.
Ms Rebecca M. John, Sr. Adv. As
Amicus Curiae with Mr Harsh Bora,
Ms Praavita Kashyap, Mr Chinmay
Kanojia, Mr Pravir Singh and Ms Adya
R. Luthra, Advs.
Mr Amit Lakhani and Mr Ritwik
Bisaria as Intervenors for Men's
Welfare Trust.
+ W.P.(C) 5858/2017 & CM No.45279/2021
KHUSBOO SAIFI ..... Petitioner
Through : Mr Colin Gonsalves, Sr. Adv. With
Ms. Olivia Bang, Ms Sneha Mukherjee,
Ms Mugdha and Ms Aimy Shukla,
Advs.
versus
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THE UNION OF INDIA & ANR. ..... Respondents
Through : Mr Ruchir Mishra, Mr Sanjiv Kumar
Saxena, Mr Mukesh Kumar Tiwari and
Mr Ramneek Mishra, Advs. for UOI.
Mr Gautam Narayan, ASC, GNCTD
with Ms Nikita Pancholi, Adv.
Mr Rajshekhar Rao, Sr.
Advocate/Amicus Curiae with Mr
Karthik Sundar, Ms Mansi Sood and
Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As
Amicus Curiae with Mr Harsh Bora,
Ms Praavita Kashyap, Mr Chinmay
Kanojia, Mr Pravir Singh and Ms Adya
R. Luthra, Advs.
Mr R.K. Kapoor, Advocate for
applicant in CM 19948/2016.
+ W.P.(C) 6024/2017
ALL INDIA DEMOCRATIC WOMEN'S ASSOCIATION. Petitioner
Through : Ms Karuna Nundy, Ms Ruchira Goel,
Mr Rahul Narayan, Mr Nitish
Chaudhary, Ms Ragini Nagpal, Ms
Muskan Tibrewala, Mr Utsav
Mukherjee and Mr Shashwat Goel,
Advs.
versus
THE UNION OF INDIA ..... Respondent
Through : Mr Chetan Sharma, ASG with Mr Anil
Soni, CGSC along with Mr Devesh
Dubey, Mr Vinay Yadav, Mr Amit
Gupta, Mr Akshya Gadeock, Mr
Rishav Dubey, Mr Sahaj Garg and Mr
R.V. Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr.
Advocate/Amicus Curiae with Mr
Karthik Sundar, Ms Mansi Sood and
Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As
Amicus Curiae with Mr Harsh Bora,
Ms Praavita Kashyap, Mr Chinmay
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Kanojia, Mr Pravir Singh and Ms Adya
R. Luthra, Advs.
+ W.P.(CRL) 964/2017
FARHAN ...... Petitioner
Through : Mr Sahil Malik, Adv.
versus
STATE & ANR. ..... Respondents
Through : Ms Nandita Rao, ASC for State.
Mr Rajshekhar Rao, Sr.
Advocate/Amicus Curiae with Mr
Karthik Sundar, Ms Mansi Sood and
Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As
Amicus Curiae with Mr Harsh Bora,
Ms Praavita Kashyap, Mr Chinmay
Kanojia, Mr Pravir Singh and Ms Adya
R. Luthra, Advs.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR JUSTICE C. HARI SHANKAR
RAJIV SHAKDHER, J.:
TABLE OF CONTENTS
Particulars Page no.
Preface 4
Arguments against striking down the impugned provisions 8
Arguments advanced for striking down the impugned 33
provisions
Submissions advanced by Amicus Curiae 62
Analysis and Reasons 79
I. Brief History of Rape Law 79
II. Separation of Powers 89
III. Judicial Restraint 95
IV. Ambit of Section 375 of IPC 99
V. In defence of MRE 105
V(i) Constitutional viability of classification 106
between married and unmarried women in the
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context of Article 14.
V(ii) Relationship-centric provisions in the IPC 113
V(iii) A married woman can take recourse to 115
other remedies
V(iv) Conjugal expectation 117
V(v) Non-consensual sexual intercourse is not 118
labelled as "rape" to save the institution of
marriage.
V(vi) Lodgement of false cases 120
V(vii) Invasion of Private Space 123
V(viia)Gathering evidentiary material would 124
be difficult
V(viii) New offence 126
VI. MRE violates Article 21 of the Constitution 133
VII. MRE violates Articles 15 and 19(1)(a) of 139
the Constitution
VIII. Separated husbands 140
IX. Presumption of Constitutionality of Pre- 143
Constitutional Statutes
X. Reliance on Decisions of Foreign Courts & 146
International Covenants & Conventions
XI. Parliamentary Committee Reports 158
XII. Material & Case law Cited on behalf of the 163
Intervenors
XIII. Summing up 187
Conclusion 192
Preface:
1. What looms before us is Lord Hale's Ghost. Thus, the key question
which arises for consideration in these matters is whether or not we should
exorcize Hale's Ghost? Hale's formulation was embedded in the doctrine of
coverture; a condition which allowed a married woman to sue only through
the personality of her husband. Since then, the world has moved on. Women
in most parts of the world are treated as individuals, free to enter into
contracts in their own right but when it comes to sexual communion with
their husbands, their consent counts for nothing. In plain words, the poser
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before the court is: Should a husband be held criminally liable for raping his
wife who is not under 18 years of age?
1.1. Before I proceed further, I must state, with all humility at my
command, that as I began to pen this judgment, the enormity of its impact on
the society was not lost on me. I do not lay claim to being the repository of
all wisdom that must be brought to bear in dealing with a sensitive issue that
I am to rule on. That said, it is incumbent on courts to take decisions
concerning complex social issues and not dribble past them, as that is the
mandate of the Constitution and, therefore; a duty and obligation which
must be discharged if one is to remain true to the oath taken under the
Constitution. Thus, the mea culpa on behalf of the institution is that one way
or the other the issue ought to have been laid to rest much earlier.
2. As was evident to us during the hearing that both within the court and
outside, people all across have views concerning the issue at hand which
vary in their contour and texture depending on which side of the debate they
fall on; the legal issue, though, rests in a narrow space.
3. The moot point is (which is a more particularized version of what was
stated right at the beginning) whether or not Exception 2 appended to
Section 375 of the Indian Penal Code, 1860 [hereafter referred to as 'IPC']
should remain on the statute. Having said that, it is the impact and its ripple
effect, in law, that one is required to grapple with. Thus, those who support
the proposition that Exception 2 to Section 375 of the IPC, which is
ubiquitously referred to as Marital Rape Exception [hereafter referred to as
'MRE'] should be struck down, broadly, contend that it is an archaic
provision which represents the most abhorrent vestiges of colonialism while
those who argue that the provision should be retained on the statute, contend
that striking down the provision is fraught with the danger of disrupting
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marital and familial relationships, triggering misuse of law and transgression
of the Constitutional periphery within which the courts are obliged to
function.
4. At this juncture, I must also advert to the fact that those who seek
striking down of MRE i.e., Exception 2 to Section 375 of the IPC, in
consonance with the arguments advanced qua the said provision, also seek
striking down of Section 376B which concerns sexual intercourse by a
separated husband with his wife, albeit, without her consent. Consequently,
prayer is also made for striking down Section 198B of the Code of Criminal
Procedure, 1973 [hereafter referred to as the 'Code'] which prohibits a court
from taking cognizance of an offence punishable under Section 376B of the
IPC except upon satisfaction of the facts which constitute the offence once a
complaint is lodged by the wife against her husband.
5. Thus, for the sake of convenience, MRE/Exception 2 to Section 375
of the IPC and Section 376B as also Section 198B of the Code will be
collectively referred to as the "impugned provisions" unless the context
requires one to refer to the provisions individually.
6. Besides, at this juncture, it would be relevant to note that one is
dealing with four petitions out of which two are purely in the nature of
Public Interest Petitions while the third petition (i.e., W.P.(C)No.5858/2017)
which concerns a person by the name, Ms Khushboo Saifi, is a halfway
house, in a sense, that she has also made assertions which seek to establish
that she has been subjected to sexual abuse including rape by her husband.
She contends that because MRE continues to remain on the statute, she is
disabled from prosecuting the complaint concerning rape allegations made
against her husband.
6.1. The fourth petition (i.e., W.P.(Crl.) No.964/2017) has also been
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instituted by an individual i.e., Mr Farhan. The prayer made in the writ
petition is to quash a particular FIR i.e., FIR bearing no.204/2016, dated
25.11.2016, registered at Police Station Hauz Qazi, Delhi, under Sections
376/363/342 of the IPC read with Sections 3 & 4 of the Protection of
Children from Sexual Offences Act, 2012 [in short 'POCSO Act'] and the
proceedings commenced thereto.
6.2. Qua this petition, no oral arguments were advanced by the counsel-
on-record for the petitioner i.e., Mr R.S. Malik. A perusal of the written
submissions filed on behalf of the petitioner is suggestive of the fact that
issues concerning Muslim Personal Law have been raised. It is, broadly,
argued that MRE is not impacted by provisions contained in the POCSO
Act.
6.3. This submission is made in the backdrop of the following broad
averments made in the writ petition : that the petitioner is married to one Ms
Alina i.e., respondent no.2, and that at the point in time, when the petitioner
i.e., Mr Farhan and Ms Alina/respondent no.2 entered into sexual
communion in the first instance, the latter was about 15 years of age. In
other words, based on Muslim Personal Law (Shariat) and Muslim Personal
Law (Shariat) Application Act, 1937 [in short "Shariat Act"] which accords
pre-eminence to the former, the stand taken is that the provisions of the
POCSO Act would have no impact on MRE.
6.4. Since, these are aspects on which arguments were not advanced,
neither by Mr Malik nor the counsel for the respondents, this petition will
have to be dealt with separately after pronouncement of the decision in the
remaining three cases.
7. With this preface, let me, broadly, cull out the arguments advanced by
learned counsel for the parties both "against" and "for" the proposition that
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the impugned provisions should be struck down.
Arguments against striking down the impugned provisions
8. The charge against the proposition that the impugned provisions
should be struck down was led by Mr J. Sai Deepak, who appeared for the
intervenor - Men Welfare Trust (MWT) and Mr R.K. Kapoor, who
represented another applicant i.e., an NGO by the name Hridaya.
9. The arguments of Mr Deepak, broadly paraphrased, were as follows :
9.1. MWT is not opposed to the criminalization of spousal sexual
offences, especially, non-consensual sex between spouses or those in spouse
like relationships. MWT does not contend that husbands/men have a right to
impose themselves on their wives/spouses sighting marriage, as be all and
end all of, implied consent to every marital privilege including sexual
intercourse. That being said, trust, dignity and respect which form the basis
of a marriage is a two-way street. A multilayered and multivariable nature of
a marital relationship has been reduced by the petitioners to one singular
issue i.e., consent; a proposition with which MWT disagrees. MWT
propounds a more calibrated position. Thus, MWT's objections to the writ
actions are, principally, the following :
(i) The prayers made in the writ petition are beyond the scope of this
court's jurisdiction and/or power that it may wield under any law or the
Constitution since the prayers if granted would create a new class/specie of
offence which is beyond the power of judicial review conferred on this
court. In other words, if the prayers, as sought, are granted, it would erode
and/or violate the basic feature of the Constitution, namely, the Doctrine of
Separation of Powers that too in a matter concerning the criminalization of a
sexual act committed by a husband on his wife, which is, otherwise,
protected under MRE.
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(ii) The Doctrine of Separation of Powers does not have a mere
transactional construct i.e., division of territory/turf between various organs
of the State but is meant to preserve the right of the Republic meaning the
people to participate in law and policymaking lest it becomes the preserve of
the few. Therefore, if this court were to grant the prayers sought by the
petitioners, it would have the effect of keeping the Republic outside the pale
of participation in law and policymaking on a sensitive social issue thereby
truncating fundamental rights as well as empowering an "unelected body" to
undertake an exercise which is beyond its constitutional mandate and
expertise. The striking down of MRE would result in the creation of a new
offence without considering its social impact. There is a need to create an
ecosystem to deal with the issue at hand, such as the provision of a
"definition", "processes", "safeguards", "evidentiary standards", "forums"
amongst others; none of which the court is equipped to forge or prescribe.
The court is, thus, a sub-optimal forum for considering a variety of
perspectives that are not only legal but also social and cultural. The court by
its very construct does not allow the participation of multiple stakeholders
which is why the creation of a new class of offence is beyond its
constitutional remit involving judicial review. The proceeding at hand is a
textbook case in point since it has not allowed for inputs from various
legitimate stakeholders who are better qualified to weigh in on the subject
beyond the narrow and incomplete confines of legality and constitutionality.
(iii) Since the learned Amici, lean in favour of the position adopted by the
petitioners, in the interest of balance and natural justice, inputs ought to have
been sought from other Amicus Curiae as well.
(iv) It is emphasized that while MWT does not question the right of
learned Amici to hold and present their position on the issue at hand,
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additional Amicis should have been appointed to present a more diverse
perspective.
(v) MRE does not in any manner envisage or require a wife to submit to
forced sex by the husband and does not encourage a husband to impose
himself on the wife; contrary to what the petitioners contend. It is important
to note that there are remedies available to address non-consensual sex
between spouses, something which is apparent on a plain reading of Section
376B and Section 498A of the IPC as also the provisions of the Protection of
Women from Domestic Violence Act, 2005 [hereafter referred to as "D.V.
Act"]. These are provisions that bring forth the legislative intent to
criminally prosecute a husband who refuses to respect consent.
(vi) The legislature, by creating a separate legal ecosystem for dealing
with spousal sexual violence, has, in effect, criminalised non-consensual sex
between spouses without terming it as rape within the meaning of Section
375 of IPC and, at the same time, balanced the rights of husbands by
appending MRE. This distinction has been made by the legislature having
regard to the complexity involved while dealing with the institution of
marriage (and not on account of patriarchy) as contended by the petitioners.
(vii) The distinction is, both, reasonable and based on intelligible
differentia and therefore, must pass muster of Articles 14, 15, 19 and 21 of
the Constitution.
(viii) Assuming for the sake of argument that the legal framework which
criminalises spousal sexual violence is inadequate, that by itself cannot be
the reason to declare the impugned provisions unconstitutional. The gaps in
the law which arise on account of inadequacy cannot be remedied by the
judiciary since these aspects fall within the exclusive domain of the
legislature. This court, exercising powers under Article 226, cannot fill a
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legal void or redress obvious lacunae. Although, the Supreme Court while
exercising powers under Article 141 could do so since this court is not
invested with the said power it cannot fill the perceived vacuum in the
framework of the law.
(ix) Although the impugned provisions are part of our colonial legacy,
they have undergone a process of Indianisation after the enactment of the
Constitution; an aspect which is evident from the Parliamentary cogitations
and consequent amendments effected in the IPC and the Code.
(x) Article 372 of the Constitution protects laws enacted prior to the
Constitution coming into force as long as they pass muster of other
provisions contained in the Constitution, in particular, provisions concerning
fundamental rights. Therefore, the presumption of constitutionality also
attaches to pre-constitutional laws unless successfully rebutted by one who
seeks to assail such a law. A law cannot be struck down merely because it
pre-dates the Constitution.
(xi) The legislature has the power and right under the Constitution to
undertake social experiments so long as they are not manifestly arbitrary; the
judiciary cannot interdict such laws merely because it has a different or a
diametrically divergent point of view. The leanings or, individual
proclivities of judges cannot become the basis for exercising the power of
judicial review.
(xii) In a matter relating to spousal sexual violence, "Bharatiya
Legislature" should have the power and freedom to ideate and consult with
other stakeholders having regard to the social and cultural mores of our
society without being subjected to pontification by the petitioners in the garb
of "international norms and standards". This approach of the petitioners
reeks of coloniality and goes against their submission that MRE is "less
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constitutional" since it is colonial. The petitioners' position of what is
colonial and what is international is selective, convenient and
constitutionally fallacious.
(xiii) Furthermore, if international norms and standards are to be applied, as
contended by the petitioners then, the movement all over is towards enacting
gender-neutral laws in the realm of sexual violence. While MWT has
actively campaigned for gender-neutral laws and the preservation of the
institution of marriage, the petitioners have sought gender-specific prayers
and the creation of gender-specific offences at the expense of marital
institutions. The abuse of the provisions of Section 498A of the IPC has
been recognised by the courts and, therefore, there is a need to introduce
gender-neutrality in the sphere of sexual violence. Therefore, if MRE is
struck down, it would only add to the existing inequities and injustice. Thus,
the appropriate forum would be the legislature as the enactment of law
requires the formulation of policy which ought to be informed by a baseline
study and not mere legal arguments. Since this court has taken up the matter
after seven years and it has taken over two months to hear legal submissions,
the legislature is surely entitled to, being accorded sufficient time to
undertake consultation with the States and various public interest groups and
organisations which operate in this space. There does not exist a single
judgment either in Bharat or elsewhere which has granted the kind of
prayers sought by the petitioners. No amount of semantic jugglery
misrepresentation of case law can refute this fact. At best this court can prod
the legislature into expediting the process of consultation and legislation if
the legislature deems it necessary but under no circumstances, can a court of
law direct a direction or outcome of the process. In fact, the court cannot
even influence the process by issuing an advisory opinion on matters which
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are outside the scope of its constitutional remit. It is only the Supreme Court
which has the power to issue an advisory opinion under Article 143 if the
Hon'ble President of "Bharat" so seeks it. There is no such power vested in
the High Court under Article 226 to issue an advisory opinion to the
legislature either of the Centre or the State. The striking down of MRE
would result in enlarging the scope of the said provision and end up in
recognizing the sexual act committed in the context of marriage as an
offence. This power is beyond the scope of the court's power of judicial
review available under Article 226 of the Constitution or even to the
Supreme Court under Article 141 of the Constitution. Therefore, reliance on
judgments such as Shreya Singhal v. Union of India, (2015) 5 SCC 11 or
Navtej Singh Johar v. Union of India, (2018) 10 SCC 12 which concerns
Section 66A of the Information Technology Act, 2000 [in short "IT Act"]
and Section 377 of the IPC respectively would have no relevance to the
instant case. These were judgments where a challenge was laid to a
criminalising provision whereas if MRE is struck down, it would result in
the exact opposite consequences i.e., end up criminalising an act committed
by a husband qua his wife in the context of marriage.
(xiv) The reliance by the petitioners on the judgment rendered in Shayara
Bano v. Union of India, (2017) 9 SCC 13 is also baseless since all that the
Supreme Court did was to declare the practice of talaq-e-biddat recognized
under Section 2 of the Muslim Personal Law (Shariat) Application Act,
1937 as unconstitutional. The question as to whether criminal consequences
should entail if recourse is taken to talaq-e-biddat by the husband was left to
the wisdom of the legislature.
1
In short "Shreya Singhal"
2
In short "Navtej Singh Johar"
3
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(xv) If this court were to grant the prayers sought by the petitioners, it
would encroach onto the exclusive domain carved for the legislature under
Article 246 of the Constitution. The issue concerning marital rape/spousal
sexual violence requires consideration of various aspects including social,
cultural and legal. Although, the issue escalated to this court is legal, the
consequences are social and cultural. Policymaking is today data-driven
(anecdotal evidence will not suffice) and, therefore, dealing with the issue at
hand as a mere lis would amount to missing the forest for the trees. The
petitioner's invitation to the court to transgress the line of the Doctrine of
Separation of Powers is "deeply disturbing" for it could have disastrous
consequences as people's respect for institutions as well as Constitution
would be diminished. Furthermore, Constitutional morality and institutional
independence would stand undermined if the petitioner's prayers were to be
granted.
(xvi) The reliance placed by the petitioners on the judgment of the Supreme
Court rendered in Independent Thought v. Union of India, (2017) 10 SCC
8004 is misplaced; in particular, emphasis laid on the " inversion test" (relied
upon by Ms Karuna Nundy i.e., counsel for one of the petitioners), is equally
misconceived. In this context, it was contended that a bare perusal of
paragraphs 1 and 190 of the judgment would show: firstly, that the court, in
that case, had confined its discussion to the issue concerning whether sexual
intercourse between a man and his wife being a girl between 15 and 18 years
of age would tantamount to rape. Secondly, the judgment made it amply
clear that the Court could not create an offence. [See paragraph 190 of
Independent Thought.]
(xvii) The judgment in Independent Thought was rendered to do away with
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the conflict which arose on account of provisions contained in the POCSO
Act/Prohibition of Child Marriage Act, 2006 [in short 'PCM Act'] and MRE
insofar as it concerned girls falling in the age group 15 to 18 years. The
court's anxiety was to do away with the immunity granted to men who marry
girls under the age of 18 when POCSO Act defined a child as a person who
was below 18 years of age. According to the court, the problem was
compounded since Section 42A of POCSO Act provides that it would
override all other legislations. It is in this context that the Supreme Court
read down MRE with respect to a girl child falling between 15 and 18 years
of age. [See paragraphs188 and 189 of the Independent Thought.]
(xviii) Thus, petitioners cannot take recourse to the inversion test and apply
the observations made in Independent Thought to buttress their stand
concerning marriage between adults. [See paragraphs 73 to 75, 83 to 85, 89
to 94 and 108.]
(xix) The petitioners' argument that striking down MRE would not amount
to the creation of a new offence but would merely enlarge the scope of
offenders is an argument that deserves to be rejected. The legislature has
consistently given sui generic treatment to the institution of marriage and,
therefore, the wisdom of the legislature needs to be respected. Although the
impugned provisions have a colonial legacy, they should be presumed to be
constitutional unless demonstrated otherwise by the challenger. [See Article
13(1) of the Constitution.] The petitioners' argument based on the judgment
of the Supreme Court rendered in Navtej Singh Johar that there is no
presumption of constitutionality qua statutes enacted prior to the coming
into force of the Constitution is misconceived as the said judgment is "per
incuriam" for the following reasons :
4
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(a) The Supreme Court has relied upon Article 372(2) and the dissenting
judgment of Chief Justice A. M. Ahmadi (as he then was) in NDMC v. State
of Punjab, (1997) 7 SCC 339 to conclude that pre-constitutional laws do not
enjoy the same degree of presumption of constitutionality as those which
were enacted after the Constitution came into force. The appropriate
provision that the court ought to have discussed is Article 13(1) of the
Constitution. Even though, the court notices its judgment in John
Vallamattom v. Union of India, (2003) 6 SCC 6115 which adverts to Article
13 of the Constitution, there is no discussion of that article in Navtej Singh
Johar.
(b) In Navtej Singh Johar, although the court referred to the judgments
rendered in Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869 and
State of Bombay v. F.N. Balsara, 1951 SCR 682, both of which dealt with
pre-constitutional enactments and the presumed constitutionality of those
statutes, these aspects were not given due consideration in Navtej Singh
Johar's case. Likewise, the courts also did not consider the impact of
another judgment rendered by it in Reynold Rajamani v. Union of India,
(1982) 2 SCC 474 which concerned the Divorce Act, 1869 i.e., a pre-
constitution enactment. The question, therefore, which arises for
consideration is whether the presumption of constitutionality attaches to pre-
constitution laws.
(xx) The fact that Section 376B of the IPC and Section 198B of the Code
were incorporated in the respective statutes by Act 13 of 2013 i.e., after the
Constitution came into force would enjoy the presumption of
constitutionality. Furthermore, the court needs to recognise the fact that
despite demands made to do away with MRE, the legislature chose not to
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remove the said provision from the statute would lend a presumption of
constitutionality even to this provision. In this context, it is important to
bring to the notice of the court that MRE has been adverted to in the
following documents despite which the legislature has chosen, as indicated
above, not to remove it from the statute :
(a) Paragraph 5.9.1 of the 167th Report of the Parliamentary Standing
Committee of Home Affairs on the Criminal Law (Amendment) Bill, 2012.
(b) 19th Report of the Lok Sabha Committee on Empowerment of Women
(2012-2013). [See paragraph 1.64.]
(c) Report of Justice J.S. Verma (Retd.) Committee on Amendments to
Criminal Law. [See paragraph 79 of the report.]
(d) 172nd Report of the Law Commission of India on Review of Rape
Laws. [See paragraph 3.1.2.1 of the report.]
(xxi) Thus, regardless of the position in law, concerning the presumption of
constitutionality of pre-constitutional laws, it is inaccurate for the petitioners
to contend that MRE is a colonial provision or baggage of the English
Doctrine of Coverture under which the wife is treated as a mere property of
the husband. The petitioners have failed to cite a single document that would
demonstrate that after coming into force of the Constitution, the legislature
has retained MRE by relying upon the Doctrine of Coverture. Therefore, in
the absence of any supporting material, to use patriarchy in the argument
qua MRE vis-a-vis the Indian Legislature as well as the Indian society at
large is to impute "colonial attitudes" on "Bhartiya society", albeit, without
basis. In short, baseless and slavishly imported rhetoric cannot replace
cogent and evidence-based legal arguments.
(xxii) Contrary to the contention of the petitioners, the impugned provisions
do not suffer from manifest arbitrariness or discrimination. For petitioners to
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seek striking down of the impugned provisions on the touchstone of Articles
14, 15, 19 & 21, they would have to discharge the onus which rests on them
i.e., that the impugned provisions are unconstitutional. The contention that
they are not unconstitutional is based on the following submissions :
(a) Under the IPC, sexual offences fall under Chapter XVI which relates
to offences affecting the human body while offences concerning marriage
and cruelty by the husband or relatives of the husband fall under Chapters
XX and XXA respectively. A sexual offence committed by a person who is
not a spouse or is a stranger attracts the provisions of Section 375. Likewise,
gang rape attracts the provisions of Section 376D. Sexual offences
committed by persons in a position of authority are covered by Section 376.
Similarly, unnatural offences without exception attract Section 377. Besides
this, sexual offences committed by a husband while remaining a husband
attract Section 498A of the IPC. Furthermore, sexual offences committed by
a husband after legal separation or de facto separation attract the provisions
of Section 376B of the IPC. Notably, under Section 376(2), although, a host
of dramatis personae are covered and, if found guilty, accorded a
punishment of not less than 10 years, with life imprisonment prescribed as
maximum punishment; a specific provision under Section 376B is engrafted
in the IPC for the husbands. This is also true with regard to those who are
covered under sub-section (2) of Section 376 of IPC. Even though, this
provision relates to a "person in authority", it does not include husbands.
The provision of the IPC when read along with Section 114A of the Indian
Evidence Act, 1872 [hereafter referred to as the "Evidence Act"] would have
grave consequences if extended to husbands. Section 114A of the Evidence
Act, inter alia, provides that in a prosecution for rape under various clauses
of Section 376 of the IPC referred thereto where sexual intercourse by the
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accused is proved and the question which arises for consideration is as to
whether or not it had the consent of the woman and if the woman states that
she did not accord consent, the court shall presume that no consent was
given by the woman. The explanation appended to this section makes it clear
that sexual intercourse shall mean any of the acts mentioned in Clauses (a)
to (d) of Section 375 of the IPC. This provision has the portent of disrupting
marital relationships.
(xxiii) Striking down MRE would render the provision provided under the
heading "Fourthly" in Section 375 of the IPC otiose since it is predicated on
natural conjugal relationships between the spouses. That being said it cannot
be said that there is no remedy available for non-consensual sex or spousal
sexual violence. [See provisions of Sections 377 and 498A of IPC.]
(xxiv) The acts referred to in Clauses (a) to (d) of Section 375 of the IPC are
deemed as sexual acts and, therefore, are not per se illegal and also outside
the remit of unnatural offences within the meaning of Section 377. What
makes the sexual acts illegal is when they fall under any of the seven
circumstances outlined in Section 375 of the IPC. Therefore, consent is not
the sole deciding factor. What determines whether or not the sexual act is an
offence are the circumstances set forth in Section 375. In other words,
circumstances/context determine the nature of consent or its absence. In
contradiction, the sexual act between a separated husband and wife whether
under a decree of separation or otherwise is premised on the consent of the
wife. This distinction is not based on patriarchal consideration but has
practical connotations since it is next to impossible to establish the absence
of consent given the intimate nature of the relationship between spouses and
possibly the absence of eye-witness accounts. It is for this reason that the
absence of consensual conjugal relationships is easier to presume in the
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event of legal or de facto separation. This is also the reason why preliminary
enquiry is required to be carried out under Section 198B of the Code to
assess if couples live apart while residing under the same roof before
booking the husband for an offence under Section 376B of the IPC. Given
the age of sexual liberation that we live in, it is not possible to conclude
whether the wife was exposed to sexual cruelty or non-consensual sex. In
other words, even the presence of bruises or injury cannot automatically lead
to an adverse conclusion as they could be merely a manifestation of passion
that may subsist between spouses when they indulge in sexual acts.
Therefore, State's intervention through the legislative route is required to
balance individual dignity and prevent the possibility of abuse of legal
remedies which may end up harming an individual's dignity/reputation.
(xxv) The argument that consent alone matters and marriage changes
nothing in this regard is legally and practically baseless. The marriage is
accompanied by obligations that the partners have to bear which inter alia
include conjugal expectations, financial obligations and, finally, duty
towards progeny. If these aspects are kept in mind then it cannot be said that
the institution of marriage cannot form the basis of sustaining MRE. A
careful reading of the language employed in Sections 375 and 376B of the
IPC would show that the expression "will" and "consent" although related
are not identical which explains the reason for the use of "without consent"
in Section 376B of IPC. In a marital relationship, since conjugal expectation
is a two-way street, partners may choose to accede to, sexual acts for a
variety of reasons and not all of them would necessarily amount to cruelty.
In such circumstances, consent is given as a part of spousal intimacy
although the will to engage may be absent. If every such incidence is treated
in a cut and dried manner as an incidence of marital rape then the only way
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partners in a marriage may survive would be by drawing up a detailed
written agreement and the steps to be observed for courtship or mating or,
by creating a detailed evidentiary record of every act of intimacy and/or by
inviting a third party to act as a witness- none of which is healthy for the
survival of the institution of marriage. This would be a blinkered approach
to consent without having regard for the context.
(xxvi) Besides the remedies available in IPC, victims of spousal violence can
also take recourse to the provisions under the D.V. Act. Section 3 of the
D.V. Act defines sexual abuse to include any conduct of sexual nature that
abuses, humiliates, degrades or otherwise violates the dignity of women.
Clearly, this includes non-consensual sex. The contention advanced by the
petitioners that the provisions of Section 19(2) of the D.V. Act only provide
for civil remedies is belied if one were to have regard to Section 19(2) of the
said act. The said provision empowers the magistrate "to pass any other
direction which he may deem reasonably necessary to protect or provide for
the safety of the aggrieved person". As a matter of practice, the magistrates
routinely issue directions for the registration of FIR under Section 498A,
376B and 377 of the IPC. Therefore, to claim that there is an absence of
criminal remedies concerning non-consensual sex is incorrect. Sufficiency
and adequacy of remedies fall within the ken of the legislature. The
difference in punishment to be accorded for spousal sexual violence and
other safeguards such as limitation is a conscious legislative call taken
having regard to the special status of marital relationships under the IPC and
D.V. Act. The legislature's endeavour in treating spousal sexual violence as
a specie distinct from rape within the meaning of Section 375 comes through
if one looks at MRE and Section 376B from that perspective. The sui
generic treatment given to sexual offences committed in marital
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relationships highlights the differences in what is categorized as an offence
and not as contended by the petitioners as to who commits the offence i.e.,
the offender. In this context, the submission advanced on behalf of the
petitioners based on Section 40 of the IPC i.e., that it defines offence in the
context of an act that is made punishable and, therefore, does not draw a
distinction based on the offender or the context is misconceived. The IPC is
replete with provisions where acts committed by different dramatis personae
take a different shape or result in a different outcome. Illustratively, the
same offence committed by an adult instead of a juvenile results in different
outcomes. Likewise, the provisions of the POCSO Act are illustrative of the
fact that the IPC is not blind to context, relationships, age or other valid
aspects. Therefore, the legislature has consciously avoided using the word
rape in the context of spousal relationships, not to protect the spouse but
those connected with them, namely, families and the progeny.
(xxvii) The marital institution is a legitimate concern of the State. The
mores and values of other countries cannot be foisted on our society. The
current state of public morality on such issues can only be ascertained by the
legislature and not the court. Furthermore, every policy disagreement cannot
be escalated to the threshold of unconstitutionality and courts cannot be used
as instrumentalities to upset policy decisions merely because a certain cross-
section of the society disagrees with them. Although disagreements are
expected in democracy, not all disagreements demonstrate and/or establish
the unconstitutionality of a provision. Critically, the judiciary cannot treat
such disagreements with policy as proof of unconstitutionality. The
decisions of the legislature must be preserved and defended to the extent
possible and wherever necessary through purposive interpretation.
(xxviii) The petitioner's contention that international norms and
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standards should be taken into account while ruling on the issue at hand
ignores the safeguards which are provided, for instance, in the Sexual
Offences Act enacted in 2003 by the United Kingdom. Section 1 of the said
Act allows the accused to raise a defence that he was under a reasonable
belief that sexual intercourse with the alleged victim was consensual.
Likewise, Section 23 of the very same Act exempts spousal and civil
partners from the applicability of Sections 16 to 19 which relate to abuse of
a position of trust. The said Act also spells out evidentiary standards and
circumstances in which conclusive presumptions may be drawn. The Act
envisages Standard Operating Procedures for the prosecution of cases
concerning an allegation of rape. The Act is gender-neutral.
(xxix) Likewise, the reliance placed by the petitioners on the judgment of the
European Court of Human Rights (ECHR) in C.R. v. United Kingdom,
(1995) 21 EHRR 3636 misses the point that it concerned an estranged
couple, a situation which is squarely covered under Section 376B of the IPC.
(xxx) Contrary to the impression given by the petitioners, in Nepal, a
petition similar to the ones filed in this court was quashed. Nepal has
brought in several procedural safeguards when the law on spousal sexual
violence was finally introduced by the legislature which included
enunciation of legal proceedings within 35 days of the commission of the
alleged offence.
(xxxi) Importantly, Nepal's legislation is also gender-neutral. The different
States of the United States of America have taken varying positions, for
instance: in the State of Maryland, spousal defence is recognised. Similarly,
Connecticut treats spouses differently from strangers. Likewise, the State of
Idaho recognises special circumstances in which a spouse/partner may be
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prosecuted. Safeguards have been introduced by other States such as
Nevada, Rhode Island, Oklahoma, South Carolina and Virginia. None of the
international instruments cited by the petitioners envisage the creation of
offences by the judiciary and critically they address the issue of sexual
dignity and violence in gender-neutral terms.
(xxxii) In sum, MWT does not oppose the recognition of spousal sexual
violence. Its position is spousal sexual violence stands already criminalised
and, therefore, the grievance concerning inadequacy can only be addressed
by the legislature and not the judiciary. Inadequacy or perceived inadequacy
is a matter which falls within the ken of the legislature and cannot become a
ground for a constitutional challenge. It is, according to MWT, possible to
protect individual dignity and marital institution without sacrificing one for
the other. Gender-neutral approach to such issues should be consistent with
the calls for gender equity.
10. I must note that the arguments that Mr Sai Deepak advanced, covered
to a very great extent the submissions which were made in the opening by
Mr Amit Lakhani and Mr Ritwik Bisaria on behalf of MWT. To avoid
prolixity, their arguments are not specifically recorded herein.
11. Mr R.K. Kapoor, who appeared for Hridaya, the other intervenor,
made submissions that are more or less in line with the arguments advanced
by Mr Sai Deepak on behalf of MWT. Briefly, Mr Kapoor's submissions
can be paraphrased as follows :
(i) Retention of MRE on the statute does not involve a violation of
Article 14 of the Constitution. In 1983 when Section 375 of the IPC was
amended by the Parliament only the expression "Of rape" was substituted
with "Sexual Offences". The substance of Section 375 remained intact.
(ii) Despite several amendments made to the IPC and other related
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statutes, MRE remained undisturbed. Thus, the wisdom or the motive of the
Parliament cannot be subjected to judicial scrutiny. The courts are precluded
from legislating. Courts only interpret the law, in case the law is misused, it
is for the legislature to amend, modify or repeal the law if deemed
necessary. In this context, reference was made to the 172nd report of the Law
Commission of India, the Draft Criminal Law (Amendment) Bill, 2012, the
report of Justice J.S. Verma Committee [hereafter referred to as "Justice
Verma Committee Report"] and the 167th report of the Parliamentary
Standing Committee on the Criminal Law (Amendment) Bill, 2012
presented to the Rajya Sabha on March 1, 2013. Besides this reference was
also made to the extracts from the judgment rendered by the Supreme Court
in (i) Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184 at
paragraph 409, and (ii) Sushil Kumar Sharma v. Union of India, (2005) 6
SCC 2817 at paragraph 16.
(iii) Section 376B and MRE/ Exception 2 to Section 375 of IPC represent
persons who fall into two different classes. On account of judicial
separation, husband and wife are physically and mentally set apart and,
therefore, the wife's consent for a sexual relationship stands withdrawn from
the date of separation. Therefore, it cannot be said that retention of MRE
would amount to a violation of Article 14.
(iv) Article 14 permits reasonable classification based on nexus and object
that is sought to be achieved by the legislature. The 167th report of the
Parliamentary Standing Committee inter alia states "..... It was, therefore,
felt if the marital rape is brought under the law, the entire family system will
be under great stress .....". The Courts cannot examine the adequacy of the
objects sought to be achieved or the motive of the legislature in passing a
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statute or retaining a provision so long there is some object behind it. In
case, MRE is struck down, husbands who are not separated would be in a
worse position than those who are separated from their wives and indulge in
non-consensual sexual acts. Such husbands would be subjected to harsher
punishment than those who are booked under Section 376B of the IPC.
Husbands, who are not separated from their spouses if found guilty of the
offence of rape under Section 376 of the IPC, will be amenable to
imprisonment for a term which shall not be less than 10 years but which
may extend to imprisonment for life. Whereas punishment by way of
imprisonment provided under Section 376B is minimum of 2 years but may
extend to 7 years. In this behalf, reference was also made to Section
376(2)(h) and 376(2)(n) concerning rape committed on a woman who is
known to be pregnant or repeated acts of rape committed on the same
woman. These provisions would demonstrate that striking down MRE
would lead to harsher consequences for the husband as compared to those
husbands who are separated from their spouse. Furthermore, our attention
was also drawn to Section 114A of the Evidence Act to demonstrate the
anomaly that would arise vis-a-vis the husbands who remained in marriage
and those who are separated from their wives.
(v) Therefore, Section 376 of the IPC concerns offences involving
persons who fall in a separate and distinct class that cannot be tampered with
by the court. [See Sant Lal Bharti v. State of Punjab, (1988) 1 SCC 3668
and H.P. Gupta & Anr. v. Union of India & Ors., (2002) 10 SCC 658.]
(vi) Thus, the issue concerning punishment that should be imposed on
husbands who are not separated from their wives and are held guilty of the
offence(s) described under Section 375 of the IPC needs legislative
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intervention. It is not the position of the impleaded respondent that if a
husband indulges in a sexual act without the consent of the wife, he should
go scot-free; what is objected to is subjecting him to a punishment harsher
than that which is provided for separated husbands under Section 376B of
the IPC. The Parliamentary Standing Committee in its 167th report,
therefore, rightly observed the following in paragraph 5.9.1 : "...The
Committee felt that if a woman is aggrieved by the acts of her husband,
there are other means of approaching the court....." It would have to be
presumed that the Parliament, at that juncture, was aware that the husband
could be punished under the D.V. Act. In this context, reference was made
to Section 3 read with Explanation I of the D.V. Act. The petitioners'
submission which tantamount to contending that MRE can be struck down
because of the inadequacy of punishment provided in the D.V. Act is
untenable because Section 376B of the IPC also provides for a lesser
punishment that is not under challenge.
(vii) It is important to note that the concerned magistrate under Section 31
of the D.V. Act is entitled to impose a penalty by way of imprisonment and
fine in case the husband commits a breach of a protection order.
Furthermore, the magistrate is also empowered to frame charges under
Section 498A and other provisions of IPC in case offences committed by the
husband are brought to his/her notice. As per the provisions of Section 32 of
the D.V. Act, such an offence is cognizable and non-bailable.
(viii) India is not a "Hindu" State, unlike Nepal. Although there are several
statutes dealing with personal laws concerning Hindus, Muslims, Sikhs,
Christians, Jains and others, the provisions of IPC apply to all. MRE benefits
all irrespective of their faith and identity. In the same vein, reference was
made to the Special Marriage Act, 1954 [in short "SMA"] to establish that
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divorce can be sought on the ground of cruelty. Reference was also made to
Section 2(iv) of the Dissolution of Muslim Marriage Act, 1939 which inter
alia furnishes a ground for divorce in case a husband fails to perform his
marital obligations, albeit without reasonable cause for three years. It was
contended that likewise, where a wife denies conjugal rights to a husband, it
has been treated as cruelty and a ground for seeking divorce by the husband.
[See Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21.]
(ix) The courts in India ought not to apply western concepts. The concept
which is in vogue in western countries cannot form the basis for striking
down a statutory provision made by Parliament having regard to the needs
of its people. Therefore, one cannot plead that there has been a violation of
Article 14 on the ground that while a wife located in a western country can
file a complaint about sexual abuse, the same remedy is not available to a
wife located in India. [See Sant Lal Bharti.]
(x) In case MRE is struck down, it is likely to be misused as has
happened in respect of cases lodged under Section 498A of the IPC. [See
Sushil Kumar Sharma.]
(xi) The courts cannot extend the meaning given to a word or expression
used in a statute. Therefore, the expression "relative" or "trust" used in
Section 376(2)(f) of the IPC cannot be extended to include a husband.
(xii) MRE has been retained on the statute to protect the "institution of
marriage". An individual is subjected to punishment for committing a crime
as it impacts the society at large which needs to be protected from the
pernicious effect of such crime. Thus, the legislative policy of not punishing
an offence committed by a husband upon his wife which otherwise would
fall within the purview of Section 375 is taken out of its realm by Exception
2 appended to the said section only to protect the society i.e., the institution
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of marriage. That marriage is a social institution that has social, economic,
cultural and religious ramifications, has been accepted by courts [See
Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702.]
(xiii) MRE has the potential of destroying the institution of marriage. [See
167th report of the Parliamentary Standing Committee.] The endeavour to
save the institution of marriage also finds recognition in various statutes
including the Hindu Marriage Act, 1955 [in short "HMA"]. In this context,
reference was made to Section 13, 13B, 14, 13(1A) & 16 of the HMA to
show there is an endeavour to save the institution of marriage. A petition of
divorce cannot be filed unless one year has elapsed since the date of
marriage. Likewise, a divorce petition based on mutual consent cannot be
instituted unless it is shown that parties have been living separately for one
year or more. Furthermore, under Section 13(1A), a decree for divorce can
only be filed after parties have undergone judicial separation for one year or
a decree of restitution of conjugal rights remains unsatisfied for the said
period. Section 16 seeks to provide legitimacy to children who are born from
a void or voidable marriage. Thus, the institution of marriage is important
not only for the couple involved but also for the family which includes
children and parents. [See Amit Kumar v. Suman Beniwal, 2021 SCC
OnLine SC 1270.]
(xiv) The position of a sex worker cannot be compared with persons bound
by marriage. The perpetrator or the abuser cannot claim restitution of
conjugal rights against a sex worker and correspondingly a sex worker
cannot claim maintenance against the perpetrator or abuser. There is no
emotional relationship between the sex worker and the perpetrator whereas
the relationship between the husband and wife is a package comprising
mutual rights and obligations which are social, psychological, religious and
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economic. It cannot be limited to just one event of consent in the context of
sexual relationships.
(xv) Same punishments cannot be provided for dissimilar situations/acts.
[See Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors., (1974) 4 SCC
222.] MRE presents a case of reasonable classification and hence cannot be
struck down under Article 14 of the Constitution. Thus, even if a violation of
Article 21 of the Constitution is established, reasonable classification is
permissible for providing different punishments.
(xvi) Retention of MRE on the statute does not indicate that the Parliament
justifies the act. It only establishes that it is not deemed fit to be punished
under Section 376 of the IPC. Therefore, if the husband were to use force or
intimidation in committing marital rape, the wife could trigger other
provisions available in IPC as also in various other statutes to have her
grievance redressed. [See paragraph 5.9.1 of the 167the report of the
Parliamentary Standing Committee and also see Sections 323 to 326, 326A,
326B, 328, 336, 352, 354, 354A, 354B, 354C, 355, 498A, 304B, 506 and
509 of IPC as also provisions of the D.V. Act.]
(xvii) Forced sexual intercourse between a husband and wife cannot be
treated as rape. At worst, it can be treated as sexual abuse as is clear upon
perusal of the definition of "cruelty" found in Section 3 of the D.V. Act.
(xviii) A wife cannot prescribe a particular punishment that can be imposed
on the husband "to satisfy her ego". The only difference between Section
376 of the IPC and the D.V. Act is with regard to the quantum of
punishment, although, the act of sexual abuse is an offence under both
statutes. The object and purpose of retaining MRE cannot, thus, be said to be
arbitrary or violative of Articles 14, 15 or 21 of the Constitution. It is for this
reason that under the Code, a different procedure has been provided vis-a-
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vis offences relating to marriage. [See Section 198, 198A and 198B of the
Code, and Sections 113A and 113B of the Evidence Act.] For other offences
as well, there is a provision under the Evidence Act for drawing
presumption. [See Sections 111A and 114A of the said Act.] Likewise, it
cannot be said that since rape is a heinous crime, Parliament should have
provided the death penalty in all cases relating to such crime. Illustratively,
reference was made to Section 376A, 376AB, 376DB and 376E of the IPC
[which provide for the death penalty], as against the offences which are
brought within the purview of Sections 376(2) and 376D.
(xix) The importance of conjugal rights in marriage can be ascertained by
having regard to Section 9 of the HMA which concerns restitution of
conjugal rights. The remedy under this provision is available to both spouses
and denial of sex by either spouse is construed as cruelty and, thus, is
available as a ground for divorce. [See Vidhya Viswanathan v. Kartik
Balakrishnan, (2014) 15 SCC 21.] Legislative wisdom cannot be doubted
on the ground of flawed classification. In this context, the example was
given of offenders to whom the provisions of the Probation of Offenders
Act, 1940 or Section 360 of the Code were available. Likewise, it was
contended that offences that were punishable with imprisonment for a longer
period such as offences falling under Section 420 and 494 of the IPC could
be compounded under Section 320 of the Code while others with a shorter
duration of punishment, for example, an offence punishable under Section
353 of IPC which was not compoundable. Reference was made to Section
494 of the IPC which concerned an offence of a spouse entering matrimony
while the other spouse was alive. It was submitted that although the
punishment could go up to 7 years, the same was compoundable. These
examples were cited to demonstrate the latitude that the Parliament enjoyed
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in providing different punishments for different offences. Similarly,
reference was also made to Sections 302, 303, 304, 304A and 304B of the
IPC. It was stated that, although the death of a victim is a foundation for
invoking, both, Section 304A and 302 of the IPC, the punishment that can
be awarded under the two provisions may vary. The quantum of punishment
can vary depending upon the relationship between the parties. The powers of
judicial review conferred on the court are limited. While exercising the
power of judicial review, the court cannot substitute its own opinion for the
wisdom of the legislature. [See K.S. Puttaswamy v. Union of India, (2017)
10 SCC 19.]
(xx) It cannot be said that if one organ i.e., the legislature gives protection
to the citizens by engrafting in the statute MRE, the other organ, which is
the judiciary, can take away the protection by striking down the exception
and, thus, creating an offence. It is a settled law that what cannot be done
directly can also not be done indirectly. In Joseph Shine v. Union of India,
(2019) 3 SCC 3910 and Navtej Singh Johar, the court de-criminalized acts
that constituted offences under Section 497 and 377 of the IPC. Therefore,
those judgments are distinguishable. Similarly, in K.S. Puttaswamy case, the
court extended the meaning of Article 21 by confirming the right of privacy
of citizens, it did not criminalize any act.
(xxi) The Independent Thought only read down MRE/Exception 2 to
Section 375 of IPC but did not create an offence. The Independent Thought
is a binding judgment for the issue raised and adjudicated in that case and,
therefore, has no application to the issues obtaining in the instant matters.
(xxii) The power of the High Court under Article 226 cannot be equated
with the power available to the Supreme Court under Articles 32, 141 and
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142 of the Constitution.
(xxiii) The Supreme Court, via the decision rendered in Vishaka v. State of
Rajasthan, (1997) 6 SCC 24111, endeavoured to fill up the legislative
vacuum in the area concerning sexual harassment of women in workplaces
while exercising powers under Article 32 of the Constitution. In that case,
the court had emphasized that their decision could be treated as law declared
under Article 141 of the Constitution. The courts can make
recommendations to the Parliament, if changes are required in the law. [See
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC
517.]
Arguments advanced for striking down the impugned provisions
12. In support of this proposition, submissions were advanced by Mr
Colin Gonsalves, Ms Karuna Nundy and the two amici appointed by this
court i.e., Mr Rajshekhar Rao and Ms Rebecca John, Sr. Advocates.
13. Mr Gonsalves, broadly, made the following submissions :
13.1. He began by alluding to the journey that the matters had taken since
2015 and in this behalf adverted to the fact that the Union of India (UOI)
had filed its counter-affidavit on 25.05.2016 in W.P.(C) No.284/2015 and
that pleadings were completed on 29.08.2016. Based on the record, he stated
that arguments in the captioned matters were heard by the earlier bench at
length for 26 days between 29.08.2017 and 14.08.2018. He also adverted to
the fact that the present bench had taken up the matter on 15.12.2021 (when
an early hearing application was allowed) and, consequently, commenced
hearing in the matter on 07.01.2022 on a daily basis.
13.2. Mr Gonsalves contended that UOI's written submissions dated
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26.08.2017 revealed that for defining marital rape, a broad-based consensus
of the society would have to be obtained. In the said written submissions,
according to Mr Gonsalves, UOI had taken the position that it was,
therefore, necessary to implead various State Governments to obtain their
opinion and avoid complications that may arise at a later stage. The
submission was that, although five years had passed, UOI had failed to
undertake a consultative process which is evident from a perusal of written
submissions dated 12.01.2022, additional affidavit dated 03.02.2022 and
further additional affidavit dated 21.02.2022.
14. Since Mr Gonsalves was representing the petitioner in
W.P.(C)No.5858/2017 [hereafter referred to as "Khushboo Saifi case"], he
briefly adverted to the facts arising in the said matter.
14.1. In this context, it was pointed out that Ms Khushboo Saifi was a
married woman of 27 years of age. She had got into an arranged marriage
with, one, Mr Aizaz Saifi on 04.12.2016 and, at that juncture, she was
pursuing a course in Bachelor of Arts (B.A.) from Indira Gandhi National
Open University. It was pointed out that, at the time of marriage, she was in
the final year of the said course.
14.2. Mr Gonsalves drew our attention to the assertions made in the writ
petition that Mr Aizaz, at the time when he entered into matrimony with Ms
Khushboo Saifi, was already involved in an extra-marital relationship with
another woman, who, he eventually married on 16.04.2017 without
providing any maintenance to Ms Saifi. The assertions concerning ill-
treatment meted out to Ms Saifi by her husband Mr Aizaz including forced
sexual intercourse on multiple occasions without having regard to her
physical well-being were also referred to in the course of arguments. The
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averment made by Ms Saifi that she was raped by her husband i.e., Mr Aizaz
was also brought to our notice. It was emphasized that Ms Saifi was not
provided medical aid either by her husband or by her in-laws and that she
was not allowed to use her mobile phone. The only way that she could
communicate with the outside world was through her husband's phone and
even these conversations were recorded. Mr Gonsalves pointed out that it is
in these circumstances that she approached an NGO for shelter, which led to
Ms Saifi filing an FIR with Crime Against Women (CAW) Cell at South-
East District, Srinivas Puri, Delhi, on 12.06.2017.
15. Besides facts involving Ms Saifi, Mr Gonsalves also made the
following general submissions. Mr Gonsalves prefaced his arguments with
the issues that, according to him, arose for consideration in the instant cases,
which, in effect, were also the broad contours of his submissions.
15.1. Firstly, according to him, MRE was manifestly arbitrary as it sought
to decriminalise a crime as heinous as rape.
15.2. Secondly, Section 376B of the IPC was unconstitutional since it
created a distinction between husbands, who are not separated from their
wives and those who are separated by bringing the latter class of husbands
within the definition of rape in respect of forced sexual intercourse under
Section 375 and, at the same time, assigned lesser punishment for such a
crime.
15.3. Thirdly, rape is a heinous crime that has multiple consequences
including mental trauma and severe adverse medical effects. It would be
arbitrary to decriminalize marital rape on the ground that by entering into
matrimony, a woman consents to a continued sexual relationship from which
she cannot retract.
15.4. Fourthly, there is no rationale for distinguishing between married and
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unmarried men who subject women to forced sexual intercourse.
15.5. Fifthly, marriage cannot be a relevant consideration in concluding
whether a criminal offence has been committed or not.
15.6. Sixthly, the rape of a woman by her husband was unconstitutional,
right from inception and is being put to test only now.
15.7. Seventhly, in any event, having regard to the passage of time and a
better understanding of gender equality, MRE should not be permitted to
remain on the statute.
15.8. Eighthly, the distinction sought to be drawn between western and
Indian values insofar as marital rape is concerned, is untenable in law. There
is no truth in the submission that Indian society is somehow superior to
western societies and that marital rape is not known in India.
15.9. Ninthly, this court should not desist from examining the
constitutionality of the impugned provisions only because it is impossible to
prove the occurrence of marital rape as at times it happens within the
confines of a household.
15.10. Tenthly, this court should also not desist from examining the
constitutionality of MRE only because some women may file a false
complaint against their husbands.
16. Elaborating upon the aforementioned submissions, Mr Gonsalves
submitted that the distinction drawn concerning the offence of rape between
those who are married as against those persons who are unmarried, was
unmerited. The classification, according to him, had no rational nexus to the
object sought to be achieved if the legislative policy on rape is to be taken
forward. Insofar as the constitutional courts are concerned, they have to only
examine whether the impugned provisions stand the test of Articles 14, 15
and 21 of the Constitution. Therefore, once such a declaration is made,
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matters concerning proof and false complaints could be examined in specific
cases by the trial courts.
16.1. Therefore, the circumstances in which the conduct of the husband
would amount to 'coercion' or 'consent' would be examined by the trial
courts in the given fact situation. Evidence led by the prosecution and
defence will determine the outcome of cases that are dealt with by the trial
courts. Adjudication of cases of marital rape and non-marital rape has been
carried out in various jurisdictions and, therefore, there are legal precedents
available to the trial courts to deal with such issues. These issues, though,
should not come in the way of a constitutional court to examine the vires of
MRE.
17. The argument that in a marriage, there is a presumption in favour of
consensual sex which is not present in forced sexual intercourse outside
marriage is flawed. The argument is founded on the theory that husbands
have a greater degree of laxity available to them with regard to consent
when engaging in sex with their wives. That this argument is untenable in
law can be tested against the plight of a sex worker. The Supreme Court has
decried such an attempt by holding that even a sex worker has a right to
refuse forced sexual intercourse. [See State (NCT of Delhi) v. Pankaj
Chaudhary, (2019) 11 SCC 575.]
18. The submission advanced that forced sex in marriage cannot lead to a
husband being sentenced to imprisonment for a term spanning between 10
years and life; the insinuation being that the sentence should be much less, is
flawed. This is also an argument put forth to defend the retention of MRE on
the statute. These submissions are premised on an erroneous understanding
of the role of constitutional courts. The court cannot resolve all
complications that concern sentencing; a job entrusted to the Parliament and,
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those which emerge out of a particular fact situation. All that is required of
the court, at this juncture, is to test the vires of the impugned provisions
against the provisions of the Constitution. Once such a step is taken, it is
open for the Parliament to step in and take the necessary next steps in the
matter which includes whether a husband found guilty of rape should be
visited with a lesser punishment.
19. It is important to note that both the courts and parliament have in the
past dealt with new and complex issues that have arisen in criminal law. By
way of example, reference was made to the guidelines issued by the
Supreme Court that were required to be adhered to by the trial courts in
cases concerning sexual abuse of children and those related to children
involving domestic violence [See Sakshi v. Union of India, (2004) 5 SCC
518 and Rajnesh v. Neha, (2021) 2 SCC 324.]
20. Thus, the elimination of MRE is the first step that is required to be
taken.
20.1. Deflating a grave and heinous offence such as rape is untenable. The
argument loses sight of the fact that the penology behind punishment is
concerned not only with the incarceration of the convict but also with
stigmatizing the conduct which does not meet with the approval of the
society. Since rape is a grave and heinous offence, society at large should
know about the conduct of the convict. Therefore, the submission that other
provisions of the IPC provide for equivalent punishment for sexual offences,
and hence, MRE should remain on the statute is untenable in law.
21. Equally, the argument that misuse of law should be a reason to desist
from striking down MRE should be rejected outrightly by the court. How,
misuse of the law needs to be dealt with is an aspect which would require
the intervention of the legislature [See Sushil Kumar Sharma.]
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22. The submission advanced that the observations made in the
Independent Thought cannot be relied upon is erroneous; once a judgment
is delivered on a given set of facts it is not open to a court to state that it
cannot be relied on as a precedent. A judgment once delivered belongs to the
world and thus, such observations cannot bind the judges, lawyers and
members of the public in other cases. If there is parity, then, litigants should
be free to apply the ratio of an earlier judgment notwithstanding such
observations. [See Ramesh Bhavan Rathod v. Vishanbhai Hirabhai
Makwana, (2021) 6 SCC 230; at paragraph 37 and D. Navinchandra & Co.
v. Union of India, 1989 SCC OnLine Bom 485; at paragraph 37.]
23. The submission that in marriage there is an "expectation of sex" i.e., a
right to have sex absent consent would amount to resurrecting the Ghost of
Lord Hale. Marriage merely gives social sanction to sex between adults.
Procreation that follows such sexual union also receives acceptability from
society. Therefore, a husband may "expect sex" but from there to argue that
he would have the right to demand sex from a woman merely because she is
in marriage with him, bereft of love, for satisfying carnal desire and
procreation, is morally and legally untenable as it institutionalizes violence
within the family. It is, therefore, the duty of a constitutional court to end
such institutional violence against women. It is quite possible that even if
this court were to nullify MRE, women victims may not lodge complaints
and may suffer silently as social change does not occur automatically with
the alteration in law alone. Might be said, it would be the first important step
towards a real change and education of women in respect of their rights over
their own bodies.
24. Ms Karuna Nundy, who appears on behalf of the petitioners, who
have instituted W.P.(C) No.284/2015 (i.e., RIT Foundation) and W.P.(C)
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No.6024/2017 [i.e., All India Democratic Women's Association (AIDWA)]
alluded to the work carried out by these organizations to promote social and
gender equality in India across classes, castes and communities.
24.1. Ms Nundy highlighted the fact that the challenge laid to MRE on the
ground that it was unconstitutional as a logical and inevitable corollary has
led the petitioners to challenge Section 376B of the IPC and Section 198B of
the Code.
25. In this context, the submission made was until marital rape is declared
explicitly to be an offence, it will continue to be condoned. It is a moral right
of a woman to refuse unwanted, forcible sexual intercourse. This case is
about respecting the right of a wife to say "no" to sexual intercourse and
recognizing that marriage is no longer a universal licence to ignore consent.
26. The Constitution is transformative as citizens are transforming. Social
transformation should ensure that citizens' right to justice, liberty, equality
and fraternity is protected. Citizens' rights travel along the constitutional
path because judges' personal and social moralities travel to the destination
of constitutional morality. Substantive equality is dependent on the
recognition of historical wrongs and discovering remedies for curing the
wrong. The right of a wife to say "yes" to sexual intercourse includes the
corollary i.e. the right to say "no" [See S. Sushma v. Commissioner of
Police, 2021 SCC OnLine Mad 2096; and Indian Young Lawyers Assn.
(Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1.]
27. The Independent Thought case is a binding authority for several
propositions including aspects concerning MRE. This judgment is also a
precedent that is relied upon for the proposition that Section 376B of the IPC
and 198B of the Code create a separate and a more lenient penal regime
when a separated husband subjects his wife to forceful sexual intercourse. In
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this regard, it is required to be noticed that initially, this court had dismissed
the challenge raised to MRE because the petition filed by Independent
Thought at the relevant time was pending adjudication before the Supreme
Court. It is when Mr Gaurav Aggarwal, Advocate, for Independent Thought
clarified to this court that the challenge before the Supreme Court was
confined to married girl children aged between 15 to 18 years, that these
petitions were taken up for hearing. [See order dated 08.09.2017 passed by
this court.]
28. The ratio decidendi of the Independent Thought case would apply
while testing the constitutional validity of MRE as a whole. The
propositions laid down by the Supreme Court in Independent Thought
would also apply to all women i.e., wives who are aged 18 years and above.
In support of this proposition, Ms Nundy relied upon the inversion test
evolved by Professor Eugen Wambaugh (Harvard Law School); a test which
was applied by the Supreme Court in a decision rendered in State of Gujarat
v. Utility Users' Welfare Association, (2018) 6 SCC 2112; at paragraph 113.
This test was also cited with approval by a three-judge bench of the Supreme
Court in Nevada Properties (P) Ltd. v. State of Maharashtra, (2019) 20
SCC 11913; at paragraph 13.
29. Applying the inversion test, it was submitted that Independent
Thought case is an authority for the following propositions.
(i) A woman cannot be treated as a commodity. She has every right to
say no to sexual intercourse with her husband. [See paragraph 66 at page
840.]
(ii) Marriage to a victim does not make a rapist a non-rapist. [See
paragraph 75 at page 843.]
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(iii) MRE creates an artificial distinction between married and unmarried
women. [See paragraph 79.3 at page 844.]
(iv) Woman is not subordinate to or a property of a man. [See paragraph
84 at page 846.]
(v) The view that criminalizing marital rape would destroy the institution
of marriage is unacceptable since marriage is not an institution but personal
- nothing can destroy the institution of marriage except a statute that makes
marriage illegal and punishable. [See paragraph 92 at page 849.]
(vi) MRE is discriminatory as it creates an anomalous situation where the
husband can be prosecuted for lesser offences but not rape. [See paragraph
186 at page 883.]
(vii) Removing MRE will not create a new offence since it already exists
in the main part of IPC. [See paragraphs 190 to 194 at pages 884-885.]
30. Each of the aforesaid propositions laid down in the Independent
Thought case is binding on this court; an aspect which comes to fore if the
inversion test is applied. In other words, if each of these propositions were to
be reversed, the court could not have reached the conclusion that it did in the
Independent Thought case. Furthermore, even obiter as a matter of judicial
propriety would be binding on the high court. [See Peerless General
Finance and Investment Co. Ltd. v. Commissioner of Income Tax, 2019
SCC OnLine SC 851 at paragraph 13.]
31. There is no presumption of constitutionality in respect of a pre-
constitutional statute like the IPC, even though it has been adopted and
continued to remain in force after the Constitution was brought into force.
Since MRE is a pre-constitutional provision, parliament's failure to remove
it is a "neutral fact". [See Joseph Shine at paragraph 270 and Navtej Singh
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Johar at paragraphs 359-364.]
32. As per Article 13, if a provision is found to be unconstitutional, the
courts must act; holding that the matter is within the ken of the legislature is
not a correct approach. [See Peerless General Finance and Investment Co.
Ltd. v. Reserve Bank of India, (1992) 2 SCC 343, paragraphs 48 to 50; and
Independent Thought, paragraphs 166 and 167.]
33. The number of people affected or harmed by the impugned provisions
cannot disentitle others from seeking relief from this court as this would be
an irrelevant consideration while deciding upon the rights of parties. [See
Shayara Bano, paragraphs 56 and 57 and Navtej Singh Johar, paragraph
367.]
34. Although, while ruling upon economic policies and statutes having
financial implications, the court should employ restraint, this does not hold
good for statutes dealing with civil liberties or those which infringe
fundamental rights. Qua such statutes, the courts should play the role of
activist. [See Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 72014 at
paragraph 88, and Govt. of A.P. v. G. Jaya Prasad Rao, (2007) 11 SCC
528.]
35. MRE violates Article 14 of the constitution. It creates three classes of
victims and perpetrators though the act is similar i.e., forced sexual
intercourse.
35.1. The MRE is violative of Article 14 as it creates an unreasonable,
discriminatory and manifestly arbitrary classification. Merely satisfying the
test of intelligible differentia is not sufficient to pass muster of Article 14.
To pass muster of Article 14, the impugned provisions must fall within the
scope of the following facets of Article 14: there should be intelligible
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differentia between classes, and there must be a rational nexus with the
legitimate objects sought to be achieved.
36. MRE suffers from irrationality and manifest arbitrariness as it
provides immunity from prosecution for rape to a man who has forcible sex
with his wife but not to a man who has forcible sex with a woman who is not
his wife. Furthermore, Section 198B of the Code and Section 376B of IPC
provides qualified immunity; in the form of an increased threshold for
cognizance and a lesser sentence in respect of a man separated from his
wife. Such privilege of purported sanctity of an institution over the rights of
individuals is manifestly arbitrary and is violative of Article 14. The mere
existence of purported logic without a determining principle is not sufficient
to protect the impugned provisions from being declared manifestly arbitrary.
[See State of Bihar v. Brahmputra Infrastructure Limited, (2018) 17 SCC
444 at paragraph 7.]
37. Moreover, if the purported rationale for retaining the impugned
provisions has outlived its purpose or does not square with constitutional
morality, the same should be declared manifestly arbitrary. [See Joseph
Shine at paragraph 102.]
38. Provisions of law that postulate institution of marriage that subverts
equality is manifestly arbitrary and bad in law. [See Joseph Shine at
paragraphs 168, 169 and 182.]
39. The argument for retaining MRE is not supported by any determining
principle. Those who support this view have not been able to establish how
removing MRE is bad for marriage. There is no discussion found in
legislative debates to support this view. There is also no reasoned dissent
qua the recommendations made in this behalf by Justice Verma Committee
Report. Therefore, the argument put forth that MRE finds mention in the
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statute to protect the institution of marriage is not an adequate determining
principle. MRE is archaic and is based on an outdated notion of marital
relationships that has no place in a just constitutional order.
40. Although, there can be no doubt that there is an intelligible differentia
between married, separated and unmarried persons, what this court is
required to examine is whether the differentia between married and
unmarried couples has a rational nexus with the object sought to be
achieved, which is, to protect forced sexual intercourse within marriage.
Therefore, if MRE is unconstitutional, whether qualified immunity extended
to separated husbands under Sections 198B and 376B of the IPC would
survive. It is well established that the object of a statute determines its
constitutionality. [See Nagpur Improvement Trust v. Vithal Rao, (1973) 1
SCC 500 at paragraph 26 and Subramaniam Swamy v. CBI, (2014) 8 SCC
682 at paragraph 58.]
41. Pre-constitutional object of MRE was to protect the conjugal rights of
husbands after the enactment of the constitution has undergone a change.
The object of rape laws as set out in post-constitutional amendments to
Sections 375 and 376 of IPC has been to protect women from violence and
to secure for them sexual autonomy and right to bodily integrity. The object
of post-constitutional rape laws is briefly this: "no man should be able to
force a woman to have sex with him without her consent".
42. MRE is flawed for the following reasons :
42.1. It nullifies the object of the main provision and, hence, must fail. The
object of the main provision is to criminalize rape. The purported defence
put forward for retaining MRE i.e., protection of conjugal rights in the
institution of marriage would destroy the object of the main provision. [See
S. Sundaram Pillai v & Ors. v. V.R. Pattabiraman & Ors., (1985) 1 SCC
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591 at paragraph 27 and Director of Education (Secondary) & Anr. v.
Pushpendra Kumar & Ors, (1998) 5 SCC 192 at paragraph 8.]
42.2. It places the privacy of marriage as an object above the privacy of the
individual in the marriage. Parliamentary debates which make a vague
reference to preserving the institution of marriage as justification for
retaining MRE is a "neutral fact". The courts need to examine whether this
neutral fact should be held to be subsidiary and directly contrary to the
explicit object of the legislation. The attempt to privilege the institution of
marriage over the rights conferred on an individual i.e., the victim-wife
under Article 21 of the Constitution can only be regarded as an
unconstitutional object. An individual victim - wife's right not to be raped
cannot be held hostage to an imposed conception of marriage. [See Joseph
Shine, at paragraph 192.] And, therefore, while seeking to secure a victim-
wife's rights under Article 21 of the Constitution, the court can scrutinize the
"intimate personal sphere of marital relationships". [See Joseph Shine, at
paragraph 218.]
42.3. The purported protection of conjugal rights by not penalizing forced
sex within marriage is not a legitimate object post-adoption of the
Constitution as it does not align with the understanding of conjugal rights as
it obtains today. [See John Vallamattom at paragraph 36.] Conjugal rights
end where bodily integrity begins while enforcing a decree of restitution of
conjugal rights between a married couple. Court can direct either party i.e.,
husband or wife to cohabit but it cannot force them to have sexual
intercourse. Thus, refusal of either party to cohabit can only lead to
attachment of property or imprisonment in civil prison. A spouse can even
obtain a divorce in case of non-compliance with the decree in his/her favour
on the ground of cruelty. Therefore, by denying a spouse sex, a person's
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property and freedom may be at risk but not his/her bodily integrity. [See
Section 9 of the HMA and judgment rendered by this court in Harvender
Court v. Harmander Singh, AIR 1984 Del 66 as also the decision rendered
by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984)
4 SCC 9015.] Therefore, the expression "conjugal rights" cannot include
non-consensual acts adverted to, say for example, in Clauses (a) and (b) of
Section 375 of IPC. Conjugal rights as enforced via courts begin and end at
cohabitation and consortium. Anything beyond this is reduced to the status
of conjugal expectation only, the denial of which is the ground for divorce.
The courts are unanimous in holding that sexual intercourse cannot be
forced via a decree of restitution of conjugal rights. MRE, on the other hand,
sanctions and indeed encourages husbands to have forced sexual intercourse
with their wives.
42.4. At present, the act of forced sexual intercourse can be punished only
if ingredients of lesser offences under Section 354 and related but distinct
offences under Section 498 and such other provisions of IPC are present.
Via MRE, a husband gets sanction to enforce his conjugal right contrary to
what the understanding of the law is without approaching the court. Thus,
allowing a husband to enforce his conjugal expectation of sex by permitting
him to have forced sexual intercourse with his wife without penal
consequences is akin to saying that a wife who believes that she is entitled to
maintenance, would have the right to sell her husband's personal belongings
and property without his consent and thereupon appropriate the proceeds
towards her maintenance.
42.5. Unlike the United Kingdom, India has a written Constitution which
lays great emphasis on fundamental rights. A statute or a provision of the
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statute that does not conform to Part III of the Constitution can be struck
down by courts. This duty is cast on the courts by Article 13 of the
Constitution. Macaulay's object in inserting MRE in the IPC when the
Constitution had not been adopted is liable to be struck down as it does not
align with its ethos. The deference to the original statute ought not to be paid
in perpetuity. The only legitimate object of the anti-rape laws, at present, is
to protect the bodily integrity and sexual autonomy of women.
43. MRE seeks to make a dubious distinction between husbands and non-
husbands, insofar as perpetrators are concerned and likewise, between wives
and non-wives as regards victims. In the context of a forced sexual act- it is
construed as rape when committed by a person other than a husband but is
deemed less than a rape when committed by a husband.
43.1. The foundation of the arguments advanced on behalf of the
respondents and intervenors is that there is an intelligible differentia
between husbands and other persons who commit such acts which, in turn,
has a rational nexus with the object of protecting the institution of marriage
and preserving conjugal rights of the husband. In other words, this
distinction lends support to the argument that MRE does not violate Article
14. This argument is flawed for the reason that every offence has three basic
components i.e. the perpetrator, the victim and the act itself. These three
components are present whether the offence is committed by a husband or a
person other than the husband and, therefore, on all three counts, MRE
should fail.
44. Taking this argument forward, the husband may have an expectation
and even an in-principle agreement that there would be sex in marriage.
Based on this it could be argued that there is an intelligible differentia on
this basis between a husband and a person who is not a husband. However,
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MRE in law is flawed since it is not restricted to protecting the husband's
expectation of sex but it elevates this expectation to the husband's right to
have forcible sexual intercourse with his wife at any point in time and under
any circumstances irrespective of her consent. Therefore, the expectation of
sex cannot have rational nexus with the object sought to be achieved. The
distinction drawn between forced sexual intercourse by the husband and
persons other than a husband is legally untenable as it has no rational nexus
with the object sought to be achieved by Section 375 of the IPC. [See
Independent Thought at paragraph 75.]
44.1. What is ironic is while MRE privileges a husband's right to fulfil his
sexual desire as and when he wishes to exercise it, it effaces the wife's right
not to engage in sexual acts. This by itself cannot stand constitutional
scrutiny. [See Joseph Shine at paragraph 168; Anuj Garg & Ors. v. Hotel
Association of India & Ors. (2008) 3 SCC 116 at paragraphs 42 and 43; and
Navtej Singh Johar at paragraph 438.]
45. Insofar as the victim is concerned, this distinction also does not serve
the object of Article 375. In both cases, the victim ends up being degraded
and humiliated. [See Independent Thought at paragraph 72.] Therefore, if
the inversion test is applied, the observations made in the said paragraph
could be applied to these cases as well.
46. In rape, the harm caused to the victim may vary and is independent of
the relationship subsisting between the parties. For instance, if a woman is
sleeping with a live-in partner and he presumes that there is consent,
although, wrongly, and commits a sexual act, the victim may choose not to
prosecute the partner. The victim may ask her partner to obtain consent in
future. However, for instance, where a victim is subjected to gang rape and
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one of the rapists is the husband, while all others who were part of the act
would be liable for prosecution under Section 376 of IPC, the husband
would be protected because of MRE. It cannot be the State's policy or in its
interest to prosecute only some rapists and not those who are married to the
victim in such cases.
46.1. MRE grants blanket immunity to sexual acts enumerated in clauses
(a) to (d) of Section 375 of the IPC and also exempts husbands from the
offence of aggravated rape. For example, rape, which results in the victim's
death or persistent vegetative state. [See Section 376A and Section 376D of
IPC.]
47. The protection under MRE extends to the extent that if the husband
were to allow for the acts described in Clause (a) of Section 375 to be done
to another person without the wife's will or consent, it will not constitute
rape. Bundling these acts committed by the husband on his wife or allowing
another person to commit acts described in Clauses (a) to (d) of Section 375
with another person with lesser offences such as cruelty, simple assault or
grievous hurt, ring-fences the husband without any legal or moral
justification. Apart from anything else, the constitutionality of MRE has to
be tested against the backdrop of the amendment made to the rape laws in
2013 and 2018.
48. As per Explanation 2 to Section 375 of the IPC, consent should be
unambiguous, unequivocal and voluntary. Therefore, consent qua a prior
sexual act will not extend to future occasions [See judgment dated
03.11.2021 rendered by the Punjab and Haryana High Court in CRM-M-
46063-2021, titled Narendra Singh v. State of Haryana, and Syam Sivan v.
State of Kerala, 2021 SCC OnLine Ker 4307.]
49. Expectation and broad agreement to have a sexual relationship in
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marriage cannot do away with the wife's right to withhold consent as
otherwise, it would result in giving the husband a pass-through to have
sexual intercourse with his wife even when she is sick or has contracted a
disease or is injured.
50. Consent is foreground in IPC in provisions concerning sexual
intercourse. [See Navtej Singh Johar in the context of Section 377 of IPC
and Joseph Shine in the context of Section 497 of IPC.]
51. The difference between the language of Section 377 and 375 is that in
the former, the element of consent is absent. An act of forced sexual act as
provided in Section 375, Clauses (a) to (d) of IPC irrespective of who
commits it, is rape. The relationship between perpetrator and victim cannot
change that fact. Rape is rape and, therefore, one should fairly label the
offence for what it is. [See Independent Thought at paragraph 75.]
52. 'Fair labelling' is an important part of criminal law jurisprudence. The
label should give sufficient information to the public at large as regards the
offence that is committed. It plays an educative and declaratory function
and, thus, in a way, reinforces the standards that the society may have set for
itself. It also helps in establishing the principle of proportionality as the
criminal justice system needs to provide for punishment that is proportionate
to the gravity of the offence. A fair label plays an important role in
expressing social disapproval of certain sorts of sexual offences; rape being
one of them. Thus, helps, in a sense, the perpetrator, the victim as also the
prosecution and the defence in grappling with the offence and its
consequences. Fair labelling enables criminal justice professionals, judges
and other stakeholders to make fair and sensible decisions [See Andrew
Ashworth & Jeremy Horder, Principles of Criminal Law, Seventh Edition,
2003 at page 25; Scottish Law Commission's Discussion Paper on Rape and
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other Sexual Offences, at paragraph 4.16; also see State of Karnataka v.
Appa Balu Ingale & Ors., 1995 Supp (4) SCC 469.]
52.1. The attempt of the prosecution to seek conviction for rape in the guise
of grievous hurt or cruelty is like attempting to fit a square peg in a round
hole. The ingredients of offences such as grievous hurt, outraging the
modesty of a woman and cruelty are substantially different from that of rape.
Over the years, rape laws in India have evolved to the extent that victims are
entitled to protection and support from the State. However, because marital
rape is not called out as rape; generally, it enables States to shirk
responsibility and accord the same level of care and protection which is
given to a woman who is raped by a person other than her husband. [See the
following provisions contained in the Code: Section 357A (Compensation to
all victims of crime); Section 357C (all hospitals to provide free and
immediate first aid to rape victims); Section 164A (protocols of medical
examination for rape victims); Section 154 (recording complaint of rape
victim); Section 164 (manner of recording statement of a rape victim);
Section 309 (expedited trial in rape cases); Section 327 (in camera trials of
rape offences); Section 53A (medical examination of the rape accused if it is
believed that such examination will afford evidence of the commission of an
offence)]. Likewise, Section 228A of the IPC protects the rape victim by
penalizing disclosure of her identity. Similarly, the proviso appended to
Section 146 of the Evidence Act prohibits eliciting evidence or putting
questions in cross-examination to the victim as to her "general immoral
character" or "previous sexual experience" for establishing consent or the
quality of consent.
52.2. Furthermore, criminal laws such as IPC penalizes wrongful acts and
punishes the wrongdoer, if found guilty. MRE allows the wrongdoer i.e., the
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husband to escape the consequences that the law provides, although, the act,
otherwise, is wrongful.
53. Criminal law in India recognizes the principle of cognate offences.
Such offences indicate the similarity and common essential features between
the offences; they primarily differ based on the degree of the offence. Non-
consensual sexual act within the meaning of Clauses (a) to (d) of Section
375 of IPC may not be covered under cognate or lesser offences if it is not
accompanied by physical violence or hurt inflicted on the body of the
victim. In the case of a married woman, the power which is otherwise
available vis-a-vis the alleged rapist under Section 53A of the Code i.e.,
examination of the blood, bloodstains, semen and swab unless done, will not
in all likelihood lead to the conviction of the husband under cognate
provisions. Thus, non-consensual sexual intercourse which is not
accompanied by physical violence may disable a victim-wife from
prosecuting her husband for cruelty under Section 498A, for hurt under
Section 323 and 326 or for outraging her modesty under Section 354 of the
IPC. The crux of the challenge to MRE is the moral and legal approbation
attached to the act of rape.
54. MRE violates Article 14 as the relationship between the perpetrator
and the victim has no rational nexus with the object of the rape laws.
55. Woman's right to physical integrity flows from her right to life,
dignity and bodily privacy protected under Article 21. The right to make
reproductive choices is a dimension of personal liberty; which means, a
woman has a right to refuse participation in sexual activity. [See Suchita
Srivastava v. Chandigarh Administration, (2009) 9 SCC 117 at paragraph
22; affirmed in K.S. Puttaswamy at paragraph 83.]
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56. Gender violence is often treated as a matter concerning family
honour; privacy must not be a cover for concealing or asserting patriarchal
mindsets. [See K.S. Puttaswamy at paragraph 245.]
57. MRE is founded on a stereotypical understanding of ascribed gender
roles in marriage. This would render it discriminatory under Article 15 of
the Constitution. MRE dilutes agency, bodily autonomy and protections
accorded by law to women in marital relationships who are subjected to rape
and is, thus, violative of Article 15(3) of the Constitution. [See Independent
Thought at paragraphs 180 and 181.]
58. Since MRE forms part of a statute which is pre-constitutional and,
therefore, there is no presumption of constitutionality and because there is
an ex-facie infringement of a married woman's fundamental rights under
Article 15(1) of the Constitution, the burden of proof shifts on to the State to
demonstrate that the statute is constitutional.
59. In consonance with the "strict scrutiny test", the State should
demonstrate that: the impugned provision is intra vires the Constitution;
infringement of woman's rights via the impugned provisions serves a
compelling State interest; the infringement is proportionate; and lastly, it is
not only narrowly tailored but is also the least restrictive measure adopted to
progress the State's interest and the object it seeks to achieve. [See Anuj
Garg at paragraphs 46, 47, 50 & 51 and Naz Foundation v. Government of
NCT of Delhi, 2009 SCC OnLine Del 176218 at paragraphs 108, 111, 112;
also see Subhash Chandrs & Anr. v. Delhi Subordinate Services Selection
Board, (2009) 15 SCC 458 at paragraph 82; Independent Thought at
paragraphs 83 and 84, and Navtej Singh Johar at paragraph 314.]
59.1. MRE fails the strict scrutiny test. There can be no compelling State
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interest in protecting husbands who facilitate gang rapes of their wives or
rape their wives by insertion of objects or have forced penile-vaginal
intercourse as none of these acts further either the institution of marriage or
can be called conjugal rights of a husband.
60. Even if one were to accept that there was a State interest in protecting
the institution of marriage, deeming non-consensual sex within marriage to
be legal and the consequential harm it entails upon the victim is in no way
proportionate to such interest, if any, of the State.
60.1. Nothing that the State i.e., the Union of India has filed by way of
counter-affidavits and/or affidavits from time to time and written
submissions discharges this onus placed upon it.
61. MRE is also liable to be struck down on the ground that it violates
Article 19(1)(a) of the Constitution. Article 19(1)(a) of the Constitution
guarantees freedom of expression to all citizens. Intimate sexual acts are a
part of an individual's right to freedom of expression, albeit, subject to
reasonable restrictions contained in sub-clause (2) of Article 19. [See Navtej
Singh Johar, at paragraph 641.1.]
62. MRE fails to label forced sexual intercourse as rape and to protect to
the full extent a woman's non-consent. The impugned provisions do not
recognize the right of a woman to say "no" to sexual intercourse with her
husband and as a logical sequitur, these provisions also take away a married
woman's ability to say a "joyful yes" to sexual intercourse. Both aspects put
MRE at cross-purposes with Article 19(1)(a) of the Constitution and, thus,
limit the married woman's right to freedom concerning sexual expression
and behaviour . [See R. v. J.A., (2011) 2 SCR 440, Supreme Court of
Canada, at paragraph 114.]
63. The right to sexual expression applies to an adult woman. MRE
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reduces a wife's sexual desire and consent to a nullity. MRE also does not
fall under the eight grounds that Article 19(2) allows as reasonable
restrictions. Out of the eight grounds, only one ground can, if at all, remotely
apply to MRE i.e. decency or morality and therefore, this restriction should
be read in consonance with constitutional morality. An individual's sexual
desire is part of self-expression and is protected under Article 19(1)(a) and,
thus, MRE cannot be justified on the ground of morality. [See National
Legal Services Authority (NALSA) v Union of India (2014) 5 SCC 43819,
at paragraph 69; and Navtej Singh Johar at paragraph 641.1.]
64. Striking down MRE would not create a new offence. An offence is an
act or omission punishable under the Code. The offence of rape under IPC is
an act of forcible/non-consensual intercourse, as described in Clauses (a) to
(d) and circumstances Firstly to Sixthly set out in Section 375 of IPC, by a
man on a woman which is not dependent on the relationship between the
perpetrator of the crime and the victim of the act. Thus, any act falling
within the ambit of the aforesaid provisions would constitute an offence of
rape. MRE grants impunity from prosecution for the very same offence for a
particular class of offenders i.e. husbands. Therefore, if MRE is struck
down, it would not create a new offence. It would only bring within the
ambit of the existing offending acts a new class of offenders i.e., husbands.
[See Independent Thought at paragraphs 190 to 194.]
65. Striking down a provision as it is unconstitutionally under inclusive,
will not tantamount to the creation of a new offence. [See People v. Liberta,
(1984) 64 N.Y.2d 15220, New York Court of Appeals and State of Gujarat
v. Ambika Mills, (1974) 4 SCC 656]
65.1. The law distinguishes creation of a new offence and interpretation of
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constituents of an existing offence which is the traditional negative act of
judicial review. [See Hiral P. Harsora v. Kusum Narottamdas Harsora,
(2016) 10 SCC 16521 at paragraph 50; Balram Kumawat v. Union of India,
(2003) 7 SCC 628 at paragraphs 4, 5, 23, 36, 37 & 40 and Devidas
Ramchandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 at
paragraphs 108 & 141.] Therefore, while adjudging the constitutional
validity of a provision, the court deems it fit to strike it down and because of
this, a new class of offenders get included within the ambit of the provision,
this would not amount to the creation of a new offence as it is only a by-
product of the court fulfilling its duty under Article 13. What would amount
to creating a new offence would be if the court is called upon to alter the
main ingredients of the act constituting a new offence.
66. Thus, "offence" pivots on the act or omission and not the offender per
se. An offence may include a perpetrator, victim, as also, the act but what is
punishable under IPC is the act or the thing done. [See Section 40 of the IPC
and Section 2(n) of the Code. [Also see Queen - Empress v. Kandhaia &
Ors., 1884 SCC OnLine All 142 and S. Khushboo v. Kanniammal & Anr.,
(2010) 5 SCC 600 at paragraph 30.] The submission is that the offence of
rape is an act of forcible/non-consensual intercourse, as described in Clauses
(a) to (d) and circumstances Firstly to Sixthly, by a man upon a woman
which is entirely separate from the relationship obtaining between the
perpetrator and the victim of the act. Therefore, it is the act which falls
within the ambit of the provision which would constitute the offence of rape.
The contention is that striking down or reading down an unconstitutional
provision is an interpretative exercise carried out by the court in the
discharge of the court's constitutional duty which is recognized as falling
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within the domain of the court since the days of Marbury v. Madison 5 US
137 (1803).
67. Unconstitutional exception provided in a statute cannot have a free
pass from judicial review on the ground that its removal would result in the
creation of a new offence. [See Motor General Traders v. State of Andhra
Pradesh, (1984) 1 SCC 222, at paragraphs 26 and 28].
68. The apprehensions expressed by MWT and those opposing the
petitioners that the burden of proof in certain cases, say, offences falling
under Section 376(2)(f) may shift in case MRE is struck down, is
unfounded. Since MRE was on the statute when the said provision was
inserted, the courts would take recourse to the mischief rule or apply the
principles of purposive construction and could thus hold the expression
"relative" would not bring by default a spouse within the ambit of Section
376(2)(f). The courts could also apply the doctrine of noscitur a sociis and
hold that since the expression "relative" appears in the company of
expressions such as "guardian" and "teacher" or a person in a position of
"trust" or "authority", the only relationship which would get covered under
the expression "relative" could be that where the accused is in a position of
power over the complainant akin to fiduciary trust.
68.1. However, other aggravated forms of rape such as those covered under
Sections 376A (results in death or persistent vegetative state of the victim)
and 376D (gang-rape) go unpunished insofar as the husband is concerned
will be punished in case MRE is struck down.
69. The argument that if the MRE is struck down, the provisions
concerning rape will be misused is devoid of any empirical data. In fact, the
most recent data (2015-2016) of the National Family Health Survey (NFHS)
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reveals that 83% of married women falling between the age bracket 15 - 49
years were victims of sexual violence committed by their "current
husbands" while 9% were subjected to violence by their "former husbands".
70. Furthermore, the analysis of NFHS data reveals that nearly 99.1% of
sexual violence cases are not reported and in most such instances, the
perpetrator is the husband of the victim. This data also reveals that a woman
is 17 times more likely to face sexual violence from her husband than from
others. Besides this, even after cases involving marital rape and assault are
excluded, the data reveals that only 15% of sexual offences committed by
persons other than the current husband of the victim are reported to the
police. It is important to emphasize that there are enough and more
safeguards available in the IPC to protect those who bear the brunt of a false
criminal complaint being lodged against them. Provisions concerning these
safeguards are found in Chapters X and XI of the IPC [see Sections 182, 191
and 211 of IPC].
71. The other argument raised on behalf of the respondents which is that
striking down MRE would expose the husbands to the risk of being awarded
a high mandatory minimum sentence of 10 years punishment is an argument
that deserves to be rejected at the very threshold. This is so as sentencing is
a matter of policy which does not fall within the realm of the court. The
minimum mandatory sentence for an offence such as rape cannot be a
consideration or factor in determining as to whether or not MRE is
constitutionally viable. It is the court's bounden duty to strike down a
provision which is unconstitutional notwithstanding the concerns that may
be raised over its perceived (dis)proportionality. That said, it is a matter of
concern for several women that high mandatory minimum sentences even in
the context of non-marital rape do not serve the cause of women but instead
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lead to lesser reporting of the offence and fewer convictions. A study of
judgments concerning the offence of rape rendered by trial courts in Delhi
between 2013 and 2018 revealed that under the old law, the conviction rate
was 16.11% whereas after the Criminal Law (Amendment) Act, 2013, the
conviction rate fell to 5.72%. The drop in conviction rate is significant and
of grave concern. The sentencing policy, perhaps, needs a relook, both, by
the government of the day and the parliament. The uptick in the mandatory
minimum sentence has usually followed a heinous crime. The 1983
amendment introduced a mandatory 7 years minimum sentence following
the Mathura rape case22. Likewise, the Nirbhaya gang rape triggered the
Criminal Law (Amendment) Act, 2013 and inter alia resulted in increasing
the minimum mandatory sentence to 10 years.
72. Thus, the mere existence of a high mandatory minimum sentence may
result in problems regarding sentencing in all cases of rape. [See Narinder
Singh v. State of Punjab, (2014) 6 SCC 466 at paragraphs 14 and 15.]
Therefore, while the mere existence of a high mandatory minimum sentence
cannot be the basis for striking down the entire provision concerning the
offence of rape, the converse should also hold true. In other words, the
existence of a high mandatory minimum sentence provided in Section
376(1) of IPC should not be the reason for not striking down MRE since a
rapist remains a rapist irrespective of the relationship with the victim and the
harm caused to the victim is independent of the relationship between the
parties. [See Justice Verma Committee Report at paragraph 77.]
73. The submission is that the sentence imposed for rape whether within
or outside marriage must be proportionate to the gravity of the offence, harm
caused to the victim and other facts and circumstances obtaining in the
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matter. The high mandatory minimum sentence presently prescribed for the
offence of rape may not meet the proportionality concerns articulated above.
That said, these concerns cannot be the ground for refusing to strike down
MRE. That courts both in India and abroad have made recommendations to
the legislature regarding sentencing issues in the context of the offence of
rape is discernible from the following judgments: Tulshidas Kanolkar v.
State of Goa, (2003) 8 SCC 590; and the judgments rendered by the
Supreme Court of Nepal in Forum for Women, Law and Development v.
His Majesty's Government of Nepal & Ors. [Writ No. 55 of the year 2058
BS (2001-2022)]23 and Jit Kumari Pangeni and Ors. v. Govt. of Nepal
[Writ No.064-0035 of the year 2063 (July 10, 2008)24.]
74. While MWT has taken a position different from that of the petitioners
insofar as striking down impugned provisions is concerned, another men's
forum i.e., Forum for Engagement of Men (FEM) has supported the plea of
the petitioners. [See paragraphs 1, 2 and 3 of FEM's application25.]
75. There is no discretion available to the court when concerns regarding
the violation of fundamental rights are raised before it. It is obligatory on the
part of the court to exercise its powers under Article 226 if the violation of
fundamental rights is established. Therefore, the argument that striking
down MRE would lead to misuse, abuse, inconsistencies with social
morality or such a move would be contrary to the legislative intent or would
result in the imposition of high mandatory sentences on husbands are aspects
which should not prevent the court from striking down MRE if it is
ultimately found to be ultra vires the Constitution. Article 226 has two parts:
The first part concerns the enforcement of fundamental rights under Part III
23
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In short "Jit Kumari (Nepal)"
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of the Constitution. The second part gets triggered when a litigant
approaches the constitutional court for purposes other than enforcement of
rights contained in Part III of the Constitution. The discretion to grant or not
to grant relief obtains, if at all, only in respect of the second part of Article
226. There is no discretion available to the court where a plea is made for
enforcement of fundamental rights under Part III of the Constitution.
76. Like in the case of MWT, FEM which is a forum for men that
supports the cause of the petitioners. On behalf of FEM, Mr Raghav
Awasthy, made brief submissions, which have not been recorded
specifically, to avoid prolixity, as they stand encapsulated in the submissions
advanced by Ms Nundy.
Submissions advanced by Amicus Curiae
77. The submissions advanced by Ms Rebecca John, learned senior
counsel, can be, broadly, paraphrased as follows :
77.1. IPC distinguishes general and special exceptions. General exceptions
are contained in Chapter IV of the IPC while special exceptions are
embedded in the relevant penal provision. MRE i.e. Exception 2 to Section
375 of the IPC falls in the category of a "special exception" to the offence of
rape.
77.2. The burden of proving that the act committed falls within the realm of
exception lies upon the accused. [See Section 105 of the Evidence Act.]
Ordinarily, the person taking recourse to a special exception must prove that
his act falls within the said exception; the standard of proof being the
preponderance of probability. [See K.M. Nanavati v. State of Maharashtra,
AIR 1962 SC 605 at paragraph 18; Dahyabhai Chhaganbhai Thakkar v.
State of Gujarat, AIR 1964 SC 1563 at paragraphs 5 to 7 and Harbhajan
Singh v. State of Punjab, AIR 1966 SCC 97 at paragraphs 13 to 15].
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77.3. Exceptions contained in the IPC are based on subjective and/or
objective facts. Illustratively, Sections 78 and 82 of the IPC are acts which
are based on objective facts. In contrast, for example, the exceptions to the
offence of defamation provided under Section 499 of IPC are based on facts
that are subjective and, therefore, must be pleaded and proved in a court of
law.
77.4. Thus, exceptions based on objective facts prohibit prosecution. MRE
(i.e. Exception 2 to Section 375 of IPC) does not have to be pleaded or
proved unless the existence of marriage itself is in dispute.
78. The legislative history of MRE would show that it was incorporated
to protect the conjugal rights of the husband and after considerable debate, it
protected wives below 10 years of age from forcible sexual abuse. Thus,
even before the preparation of the draft penal code by Lord Thomas B.
Macaulay in 1837, the common law excluded the wife's consent from the
sphere of sexual acts. The common law position is traceable to the Doctrine
of Coverture and implied consent. According to this doctrine, the legal rights
of a woman were effaced after marriage. A woman having entered
matrimony was deemed as her having given irrevocable consent to
participation in sexual acts with her husband. [See Hale's Doctrine.]
79. In support of her submissions, Ms John drew our attention to the
relevant provisions of the draft IPC and the relevant notes appended thereto,
the observations made by the Indian Law Commissioners in their "First
Report on Penal Laws, 1844" and the resultant modification brought about
in Section 375 when it was first incorporated in the IPC.
79.1. In this context, our attention was also drawn to how the parameters
concerning age were incorporated in Exception 2 to Section 375 of IPC
commencing from 1837 (when there was no provision for age in the
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exception) up until 2017 when the Supreme Court rendered its decision in
Independent Thought case.
80. Our attention was also drawn to the legislative history concerning
sexual offences as it prevailed in the United Kingdom commencing with the
amendment made to the Sexual Offences Act, 1956 via the Sexual Offences
(Amendment) Act, 1976 and the view expressed by the House of Lords qua
MRE in R. v. R., 1991 UKHL 12 : 1991 (4) All ER 48126.
80.1. The impact of the decision rendered in R. v. R. was also brought to
our notice by referring to Section 142 of the Criminal Justice and Public
Order Act, 1994.
81. Going further, Ms John made the following submissions :
(i) MRE renders a married woman remedy less when she is subjected to
an offence of rape by her husband. It disregards the wife's right to consent to
sex within marriage. Resultantly, while Section 375 criminalizes sexual acts
committed without the consent of a woman, it exempts husbands from being
prosecuted only on account of their marital relationship with the victim.
(ii) The MRE infringes the fundamental rights of a married woman. The
validity of MRE has to be tested not with reference to the object of the State
action but based on its effect it has on freedoms guaranteed under the
Constitution. [See K.S. Puttaswamy.]
(iii) MRE takes away a married woman's sexual agency. The provision
subordinates the wife vis-à-vis her husband in the context of the marital
arrangement obtaining between them. MRE is, therefore, manifestly
arbitrary. [See observations made in Joseph Shine which struck down
Section 497 of the IPC and, thus, decriminalized adultery.]
(iv) Antiquated notion of marriage as articulated more than 200 years ago
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by Lord Hale needs to be changed. The common law understanding of
marriage which was engrafted in the IPC should be judicially discarded as
has been done in the United Kingdom; the country from which the doctrine
was borrowed in the first instance. Constitutional courts must intervene
when structures of injustice and persecution deeply entrenched in patriarchy
destroy constitutional freedom. In doing so, the court would not be adopting
a paternalistic approach but would be fulfilling its duty to give effect to the
rights already enshrined in the Constitution.
82. The striking down of MRE would not lead to the creation of a new
offence. [See Independent Thought and R. v. R.]
83. Although, there are several provisions in the IPC which deal with
offences committed against married women by their husbands, they do not
address the crime concerning non-consensual sex between a husband and a
married woman. In this behalf, our attention was drawn to Sections 498A,
304B, 306, 377 of the IPC; the presumptions created in law under Section
113A, 113B of the Evidence Act; Sections 3 of the Dowry Prohibition Act,
1961 [in short "Dowry Act"]; Section 3 of the D.V. Act and lastly, Section
24 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994.
83.1. The aforementioned provisions criminalize and punish a variety of
crimes committed by a husband against his wife. These are criminal acts in
the nature of physical violence, mental cruelty/violence and dowry demand.
Furthermore, remedies are also available to a woman against abuse which is
in the nature of physical, sexual, verbal or even emotional under the D.V.
Act. Besides this, procedural rules of evidence create a presumption against
a husband in the event of the unnatural death of a married woman or in a
case involving the unlawful determination of the sex of a foetus. None of
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them, as indicated above, bring within its ambit forced sexual acts
committed by the husband on his wife. Likewise, Section 498A does not
cover non-consensual sex. The statement of objects and reasons of the
Criminal Law (Amendment) Act, 1983 whereby Section 498A was
incorporated in the IPC establishes that it was introduced to deal with the
specific evil of dowry deaths and marital cruelty inflicted by the husband or
the in-laws on a married woman for dowry. The expression "cruelty" as
defined in Section 498A does not bring within its ambit non-consensual acts
committed within marriage. [See Section 498A(a) and (b) of IPC.]
84. In criminal law, offences are separately and distinctly defined. There
is no overlap between provisions created to address crimes against women
and the offence of non-consensual sex within marriage. Each of the
aforementioned special provisions/statutes, framed for the protection of a
married woman, deal with specific crimes. The crime of rape is outside the
purview of the aforementioned provisions and/or statutes. [See the
Statement of Objects and Reasons of D.V. Act, Dowry Act and Criminal
Law (Amendment) Act, 1983.]
85. A perusal of the Statement of Objects and Reasons of the D.V. Act,
the Dowry Act and the Criminal Law (Amendment) Act, 1983 would
establish that the argument advanced by the respondents that equal and
alternative remedies are available in law to wives concerning forced sex
within marriage, is flawed. Assuming without admitting that equal and
alternate remedies exist under law for the protection of married women,
specific beneficial provisions carved out in law to protect the interests of a
woman victim under the following provisions would still not be available to
a married woman i.e., Section 228A of IPC; Sections 26, 53A, 154, 157,
161, 164, 164A, 309, 327 and 357C of the Code and the proviso appended to
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Section 146 of the Evidence Act.
86. International Conventions can be read into domestic law, especially,
for construing the contours of domestic law when there is no inconsistency
between the international convention and the domestic law. [See Vishaka at
paragraph 14; and Independent Thought at paragraph 34.]
86.1. Furthermore, in the same vein, India's obligation under the
Convention on the Elimination of All Forms of Discrimination Against
Women [in short "CEDAW"] requires that MRE should not remain on the
statute. Reference in this regard is made to the following:
(i) CEDAW (37th Session, 2007) - Concluding comments on the
Committee on the Elimination of Discrimination against women: India; at
paragraphs 22 and 23.
(ii) CEDAW (58th Session, 2014) - Concluding Observations on the
fourth and fifth periodic reports of India; at paragraph 11(c) of Clause C.
(ii) 47th Session, 2021 - UNSR on Violence Against Women, Dubravka
Šimonović - Rape as a grave, systematic and widespread human rights
violation, a crime and a manifestation of gender-based violence against
women and girls, and its prevention, at paragraphs 22, 36, 69, 70-72.
(iii) 47th Session, 2021 - UNSR on Violence Against Women, Dubravka
Šimonović - A Framework for legislation on rape (Model Rape Law), at
serial no. V, Article 2, paragraph 17.
(iv) 26th Session, 2014 - UNSR on Violence against women, its causes
and consequences, Rashida Manjoo - Mission to India, at paragraphs 49-50,
78 of Clause IV(A).
(v) UNSR VAW - 52nd Session (Commission on Human Rights, 1996) -
Report of the Special Rapporteur on violence against women, its causes and
consequences.
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87. Provisions in the IPC which provide for exceptions on account of
marital relationships are based on crimes committed outside marriage and
not a crime committed by one spouse upon the other. [See Sections 136,
212, 216 and 216A of IPC.]
87.1. Thus, even for the sake of argument, it is accepted that IPC recognizes
that marital relationship is distinct from other relationships, no rational
nexus is discernible between the exception carved out in Section 375 and the
object sought to be achieved by the said provision which is to recognize and
punish persons who commit the offence of rape on a woman. Therefore, the
differentia between a married and unmarried woman has no rational nexus
with the object sought to be achieved by the provision.
88. It is time to revisit the validity of MRE. Considering the fact that
several countries around the world have done away with MRE and that
much water has flown since the opinion given by the Law Commission of
India in its 172nd Report was published in 2000- it is important to highlight
that after the Nirbhaya gang rape case, via Criminal Law (Amendment) Act,
2013, several amendments were brought about in criminal law pursuant to
recommendations made by the Justice Verma Committee which included a
recommendation for deletion of MRE. Since then, the judicial opinion in
India has moved perceptibly in the direction of recognizing the autonomy
and sexual agency of an individual including that of a married woman. [See
Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj.
73227.]
89. MRE is anachronistic and an offensive provision; which has no place
within the constitutional framework as it operates in India today. Thus, to
give full effect to the plea for striking down MRE/Exception 2 to Section
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375 of the IPC, Sections 376B of IPC and Section 198B of the Code must
also be struck down.
90. Ms John also made suggestions for changes that should be brought
about by the legislature concerning sentencing. According to her, experience
has shown that a high minimum mandatory sentence has not led to an
increase in conviction rates. She suggests that the legislature needs to,
perhaps, reduce the period of mandatory minimum punishment and at the
same time restore the discretion which courts had in matters of sentencing
before the Criminal Law (Amendment) Act, 2013.
90.1. Our attention was drawn to the fact that before the Criminal Law
(Amendment) Act, 2013, the court had the discretion to impose a sentence
of imprisonment less than the prescribed period, which was, 7 years. In this
behalf, reference was also made to the sentencing regime which prevails in
the United Kingdom and is governed by the provisions of the Coroners and
Justice Act, 2009 and the guidelines framed thereunder by the Sentencing
Council constituted under the said act. [See Sections 118 and 120 of
Coroners and Justice Act, 2009.]
90.2. Lastly, the submission made was that should MRE be struck down, a
husband cannot be brought under the provisions of Section 376(2)(f) of the
IPC which deals with the offence of aggravated rape committed while the
victim is in the custody of the perpetrator or holds the position of trust or
authority with a woman-victim. The latter which is provided in Clause (f) of
sub-section (2) to Section 376 should exclude the husband having regard to
the context in which the expressions "relative", "guardian" or "teacher" are
used.
91. Mr Rajshekhar Rao, learned senior counsel, made the following
submissions concerning the issues raised in the course of the hearing :
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91.1. The argument articulated on behalf of the respondents that this court
should defer to the wisdom of the legislature or that the court is an improper
forum for adjudication of the issues at hand and is not in a position to hear
multiple opinions from various sections of the society is an argument which
is liable to be rejected. This submission is flawed, broadly, for two reasons:
First, it disregards the nature of the relief sought by the petitioners. Second,
it ignores the power available to the court under Article 226 of the
Constitution.
91.2. Article 13 read with Article 226 of the Constitution empowers the
High Courts to strike down laws that are inconsistent with or in derogation
of fundamental rights. [See Navtej Singh Johar.] Constitutional courts have
an obligation to declare laws which are found to be unconstitutional, more
so, when legislatures have been lethargic despite the recommendation of
expert bodies. [See Justice Verma Committee Report.] While examining the
validity of a provision or statute, the courts should apply the "effect test" to
ascertain whether an artificial distinction is created between different classes
of persons. [See Anuj Garg.] The role of the constitutional High Courts
becomes particularly significant as they are obliged to ensure the retention
of gender equality and to provide mechanisms to enable women to redress
their grievances related to gender-based violence. [See Aparna Bhat v. State
of Madhya Pradesh, (2021) SCC OnLine SC 230.]
91.3. The question raised by the petitioners is not only one relating to the
inadequacy of remedy but rather relates to the flagrant violation of the
fundamental rights of a married woman. In other words, the assertion of a
married woman is : to be treated at par with other women, to be accorded
protection for her bodily integrity, recognition of her sexual agency and
lastly, the right to prosecute the rapist irrespective of her relationship with
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the offender. Therefore, while courts must give wide latitude to the
legislature concerning statutes dealing with fiscal and economic matters as
they are "essentially ad hoc" or "experimental", the approach to be adopted
by the courts is very different when it concerns matters involving civil
liberties and human rights. The petitioners seek the intervention of this court
to strike down an unconstitutional provision and, not to, amend a policy
decision. Consequently, the instant lis falls squarely within the ambit of
Article 226 of the Constitution. [See Laxmi Devi.]
92. MRE fails the Article 14 test. The argument advanced by the
intervenors that because there exists a differentia between married and
unmarried couples, which is, the basis for classification, MRE should be
sustained is flawed for the following reason : This submission fails to
appreciate that classification based on intelligible differentia should have
rational nexus with the objects sought to be achieved viz. it must be
"pertinent to the subject in respect of and the purposes of which it was
made". [See State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.]
92.1. While this test is easily applicable to the object of the statute as a
whole for special enactments, it is the purpose of the specific provision
which becomes relevant as in the case of general enactments such as IPC.
[See Subramanian Swamy v. CBI, (2014) 8 SCC 682; Harsora v. Harsora;
Navtej Singh Johar; and Mithu v. State of Punjab, (1983) 2 SCC 27728.]
92.2. This is particularly so because within the same legislation, the same
differential i.e., marital status may be used as the basis for classification in
multiple sections, for example, in Sections 136, 212, 216 and 216A of the
IPC and, therefore, while the differentia may satisfy the test of Article 14 in
one case, it may not satisfy the test in another case such as MRE. In the
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present case, the test can either be applied to Section 375 in its entirety or
more narrowly, only to Exception 2 appended to it. Since the role of an
exception or proviso is to carve out something from the main provision, it
can neither subsist independently nor can it nullify the object of the main
provision. Therefore, the test should be applied to Section 375 as a whole
and if it is so applied, it would come to fore that the differentia sought to be
drawn between married and unmarried couples is both irrelevant and
arbitrary.
93. Admittedly, the purpose of Section 375 of the IPC is to punish non-
consensual sexual acts - also it cannot be disputed that marital obligations,
duties, rights or privileges cannot be enforced through violence or any other
non-consensual acts, which would otherwise be an offence. Consequently,
the classification between marital and non-marital relationships in Section
375 is impermissible under Article 14 of the Constitution. The factum of
marriage would not bridge the gap between permissible and an
impermissible act by treating the said fact as equivalent to conveying
willingness or consent to engage in a sexual act as described in Clauses (a)
to (d) of Section 375 of the IPC. Therefore, the substance of marital
relationship between the offender and the victim is irrelevant for the
purposes of Section 375. If, however, the opposite were true, the exception
ought to have made an explicit alteration in the nature of consent that is
required in a marital relationship (whether deemed or otherwise). In the
absence of such provision, the court should not discover some undisclosed
and unknown reason for classification which otherwise is hostile and
discriminatory vis-à-vis an individual; in this case a married women victim.
93.1. The absence of consent is a foundation of the offence of rape under
Section 375 of the IPC. The decriminalization of an act by a husband which
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would otherwise constitute rape under the IPC is based on an archaic belief
that the very act of marriage contemplates consent by the wife for sexual
intercourse, for all times, during the subsistence of matrimony or, at least,
till such time they will live separately whether under the decree of
separation or otherwise. Apart from being founded on an outdated notion of
the concept of marriage and the status of the wife within it, such a
presumption concerning consent is inconsistent with the applicable law. Any
suggestion to the contrary is manifestly arbitrary and unreasonable and
constitutes a gross denial of equal protection of laws to a married woman.
[See Lachhman Dass v. State of Punjab, (1963) 2 SCR 35329; Independent
Thought; and Shayara Bano.]
93.2. The importance of consent finds legal recognition under the IPC itself
including offences falling under Chapter XVI involving offences affecting
the human body which could be a precursor to non-consensual marital
intercourse or those which deal with the product of such intercourse viz.
procreation. [See Section 354A (sexual harassment); Section 319 (hurt);
Section 339 (wrongful restraint); and Section 313 (causing miscarriage
without woman's consent) of the IPC.]
93.3. The classification based on marital status creates an anomalous
situation inasmuch as it gives a married woman lesser protection against
non-consensual sexual intercourse by their husbands than against strangers.
It also results in lesser protection than that which is available to a woman
who is subjected to a non-consensual sexual act by a cohabitee or a live-in
partner. This defeats the argument put forth that MRE has to be saved as it
seeks to protect the institution of marriage. This is particularly disconcerting
when IPC in the same breath recognizes that an act perpetrated by a person
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who is in a position of trust i.e., in a fiduciary capacity is more egregious
than one done by a stranger. [See Section 376(2)(f) of the IPC.]
93.4. The argument that the exception needs to be retained to preserve the
institution of marriage is flawed for the following reasons: First, the law
itself recognizes that it cannot force parties to have sexual intercourse even
if they are married. This is evident from the fact that even orders for
restitution of conjugal rights can only be enforced by attaching property.
[See Order XXI Rule 32 of the Code of Civil procedure, 1908 (CPC) and
Saroj Rani.] Second, forced sexual intercourse in marriage, far from
preserving the institution of marriage, is a reflection of what the marriage
ought not to be. Marriage denotes a partnership of equals with reasonable
marital privileges for both spouses. However, reasonable expectations or
privileges cannot be equated with willingness or consent by default in all
situations. [See Joseph Shine, Indra Sarma v. V.K. Sarma, (2013) 15 SCC
755; State of U.P. v. Chhotey Lal, (2011) 2 SCC 55030.]
93.5. Marriage is no longer as "sacred" or "sacrosanct" as it was considered
in the past. Legislative provisions for divorce and judicial separation support
this conclusion. [See Sections 10 to 13B of the HMA; Sections 23 and 24 of
the SMA; Sections 32 and 34 of Parsi Marriage and Divorce Act, 1936 and
Sections 10, 10A and 23 of the Divorce Act, 1869].
93.6. Furthermore, procreation is not the only purpose of marital
intercourse as is evidenced by the fact that it is impotence rather than
sterility which makes a marriage voidable. [See Section 12(1)(a) of HMA.]
This further reinforces the inbuilt statutory recognition of the right of a wife
to expect a healthy sexual relationship with her spouse. Implicit in this
presumption is that such a relationship is consensual. Therefore, the
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contention that striking down MRE would destroy the institution of marriage
is meritless since the husband can be prosecuted for several other offences in
relation to the said act.
94. The argument that because of the subsistence of marital relationship
between the offender and the victim, it would be inherently difficult to
ascertain whether ingredients of willingness or consent were present in the
sexual act must be rejected as an irrelevant aspect in the instant cases - as
these are matters concerning the trial and evidentiary procedure and hence,
can neither render the classification provided in the exception as reasonable
or non-arbitrary nor can it prevent the same being struck down on
constitutional grounds. The courts must "separate the grain from the chaff"
when appreciating evidence which is true of every matter going to trial
including matters involving sexual offences whether in the context of
marriage or outside marriage. Thus, even if MRE is struck down and the
rape committed by a husband on his wife is criminalized, the courts will
have to continue to perform the same role of appraising evidence; there is no
good reason, not to repose faith in the ability of the court to do so just
because of the subsistence of marital relationship between the offender and
the victim. To deny a married woman the right to call a rape a rape if
committed by her husband, would strike at the very core of her right to life
and liberty guaranteed under Article 21 of the Constitution. Independent of
the challenge laid to MRE under Article 14, it violates the provisions of
Article 21 of the Constitution. This submission is de hors the submission
made that MRE does not satisfy the twin test provided in Article 14 of the
Constitution i.e., that the classification should be based on intelligible
differentia and that it should have nexus with the objects sought to be
achieved by the provision as a whole.
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94.1. The act of non-consensual sexual intercourse or rape is abhorrent and
is inherently violative of the basic right to life and liberty guaranteed by
Article 21 in any context. The act causes deep psychological, physical and
emotional trauma. Such an offence is not an offence just against the victim
but the society at large. It violates the woman's right to : (a) equality and
equal status under the law which is conferred on all human beings (b)
dignity and bodily integrity (c) personal and sexual autonomy (d) bodily and
decisional privacy (e) reproductive choices i.e., right to procreate and
absentation from procreation. [See Moti Lal v. State of M.P., (2008) 11 SCC
20; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384; Bodhisattwa
Gautam v. Subhra Chakraborty, (1996) 1 SCC 490; State of Haryana v.
Janak Singh, (2013) 9 SCC 431; NALSA; Joseph Shine; K.S. Puttaswamy;
Z. v. State of Bihar, (2018) 11 SCC 572 and Suchita Srivastava.]
94.2. Rape is rape and a rapist remains a rapist; no amount of classification
and verbal jugglery can alter that reality. Notably, every other woman
including a sex worker is entitled to decline consent and prosecute for rape;
a right which is not available to a married woman. [See CR v. UK,
Independent Thought; and State of Maharashtra v. Madhukar Narayan
Madikar, (1991) 1 SCC 57.] The effect of MRE is to render the wife's lack
of consent irrelevant inasmuch as where she does not consent to a sexual act,
she cannot prosecute her husband for rape. There can be no greater indignity
that the law can heap upon a woman than to deny her the right to prosecute
for violation of her bodily integrity, privacy and dignity, that too, at the
hands of her husband from whom she would legitimately expect to receive
love and affection and who would be expected to safeguard her interests.
The argument that the husband can be prosecuted inter alia under other
provisions such as assault (Section 351 of IPC), sexual harassment (Section
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354A of IPC) or for outraging her modesty (Section 354 of IPC), misses the
point that if this submission is accepted, it would trivialize an act which has
grave and irreversible psychological and physical consequences for the
victim; for this reason alone, MRE deserves to be struck down.
94.3. Therefore, if the provision is violative of fundamental rights, as in this
case, the court cannot step aside and wait for the legislature to intervene in
the matter. The court is duty-bound to invalidate a provision or the statute if
it infracts an individual's fundamental rights guaranteed under the
Constitution. [See Independent Thought; Shayara Bano and Delhi
Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600.]
95. It is fallacious to contend that the court cannot strike down MRE
because it will result in discrimination against men due to the gendered
nature of Section 375 of the IPC. The issue before the court is not whether
Section 375 or any part thereof should be made gender-neutral but whether
MRE is justifiable and tenable in law. Article 15 of the Constitution
mandates positive discrimination in favour of women and, therefore, there
are several statutes and provisions, which include Section 375, which carry
this ethos forward. The challenge in these petitions is restricted to
unreasonable classification created against women and, therefore, this court
is empowered to strike down MRE on the ground that it violates Article 14
of the Constitution. Invitation to make the provision gender-neutral, if
accepted by the court, would tantamount to stepping into the shoes of the
legislature which is best avoided.
96. Striking down MRE will not create a new offence. The removal of the
MRE from the statute on the ground that it is discriminatory and
unconstitutional will only bring within the fold of offenders a particular
category of offenders who are, presently, not subjected to the rigour of rape
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law. The act of rape is punishable. The striking down of MRE will not
criminalize a new behaviour or act.
96.1. There is will no violation of Article 20(1) as striking down would
operate prospectively.
96.2. Courts have in the past expanded the application of existing offences
by revoking exemptions granted to a class or by removing differences in
sentences in different classes. [See Harsora v. Harsora; and Mithu.]
97. The continuation of MRE on the statute is in the teeth of India's
obligations under Articles 1, 2, 5 and 16 of CEDAW which require the
elimination of all forms of discrimination against women, particularly, in
relation to marriage. Nations that are signatories to CEDAW are required to
repeal all national penal provisions that give effect to acts of discrimination
directed against women. Furthermore, the courts are required to give effect
to the obligations undertaken under international conventions. [See NALSA;
Navtej Singh Johar; People's Union of Civil Liberties v. Union of India,
(1997) 3 SCC 433; Apparel Exports Promotion Council v. A.K. Chopra,
(1999) 1 SCC 759.]
98. The courts in various other jurisdictions have recognized that
exemptions from prosecution for the offence of rape based on the marital
relationship between the offender and the victim is an antiquated concept
and should no longer be available as a defence to an offender. [See R. v. R.;
People v. Liberta; FWLD (Nepal); Jit Kumari (Nepal); People of the
Philippines v. Edgar Jumawan (G.R.No.187495 dt. 21.04.2014), Supreme
Court of the Republic of the Philippines31.]
98.1. The contention advanced by the intervenors that the aforementioned
foreign jurisdictions did not have a provision akin to Section 2 to Section
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375 of IPC is accurate insofar as U.K. and Nepal are concerned. The statute
referred to in People v. Liberta at the relevant time provided a specific
exception for an act of rape against one's wife. The law in Nepal now stands
legislatively amended to criminalize the act, albeit, with lesser punishment
than rape by a stranger. Notably, each of the aforementioned decisions in
one form or another recognize that the existence of such an exception
whether in the statute or, the law was "repugnant and illogical", abuse of the
married woman's human rights and "simply unable" to withstand even the
slightest scrutiny. Insofar as India is concerned, these very aspects militate
against the continuation of MRE on the statute.
99. In sum, the submission is that this court ought to strike down the
impugned provisions as they are violative of Articles 14 and 21 of the
Constitution.
Analysis and Reasons
I. Brief History of Rape Law
100. To understand, why the continuance of MRE on the statute is
problematic for a substantial number of persons, if not all, it would be useful
to closely look at the history of MRE; a plain reading of which will disclose
that it is steeped in patriarchy and misogyny. In fact, I would go further and
say that MRE has contributed to diminishing the freedom won by human
beings from slavery and the struggle that they experienced in removing
discrimination on account of colour, creed, ethnicity and sex.
101. The genesis of MRE is rooted in the doctrine expounded by Sir
Matthew Hale, Lord Chief Justice of the Court of King's Bench in a
document titled "History of the Pleas of the Crown" which was published
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sixty years after his death i.e., in 1736. The original formulation, as it
appears, concerning MRE was framed by Sir Matthew Hale as follows :
"Hiftoria Placitorum Corone
Be fo, for the woman may forfake that unlawful courfe of life.
But the hufband cannot be guilty of a rape committed by
himfelf upon his lawful wife, for by their mutual matrimonial
confent and contract the wife hath given up herfelf in this kind unto
her hufband, which fhe cannot retract."
[Emphasis is mine.]
102. This formulation came to light with the publication of the book
authored by John Frederick Archbold in a book titled Pleading and Evidence
in Criminal Cases (1822: First Edition).
"assault, under 48 & 49 Vict. c. 69, s. 9 (ante, p. 1017). A woman
may be convicted as principal in the second degree in rape. R.v.
Ram, 17 Cox, 609, 610 n., Bowen, L.J. It is a general proposition
that a husband cannot be guilty of a rape upon his wife. 1 Hale,
629; but it would seem that the proposition does not necessarily
extend to every possible case: see the remarks of the judges in R. v.
Clarence, 22 Q. B. D. 23. But both a husband and a boy under
fourteen."
[Emphasis is mine.]
103. A perusal of the aforesaid extract from John Frederick Archbold's
book would show that even as far as the early part of 19th-century doubts
were entertained as to the applicability of the principle articulated by Sir
Matthew Hale ( at least in certain circumstances) that a husband cannot be
held guilty of committing the rape qua his wife. R. v. Clarence [1888] 22
Queen's Bench Division 2332 was a case in point. This is a case that I would
discuss in the latter part of my judgment. Suffice it to say that this case did
bring to the fore the unmistakable fact that the proposition did not stand on
terra firma. The English courts also found, it appears, ways and means to
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dilute the common law doctrine which was that once a woman entered
matrimony, it was deemed that she had given her irrevocable consent to
sexual communion with her husband. [See R. v. Clark, (1949) 2 All ER
44833; R. v. Obrien, (1974) 3 All ER 66334; R. v. Steele, (1976) 65 Cr. App.
R 22.]
104. However, the change in law moved at a glacial pace even in the
United Kingdom (UK); the birthing mother of the troublesome common law
doctrine. It appears that the offence of rape was formally defined for the first
time with the enactment of the Sexual Offences (Amendment) Act, 1976.
This Act amended the Sexual Offences Act, 1956 by defining the offence of
rape as follows :
" Sexual Offences (Amendment) Act 1976
1976 CHAPTER 82
1. Meaning of "rape" etc.
(1) For the purposes of section 1 of the Sexual Offences Act
1956 (which relates to rape) a man commits rape if -
(a) he has unlawful sexual intercourse with a woman who at
the time of the intercourse does not consent to it; and
(b) at the time he knows that she does not consent to the
intercourse or he is reckless as to whether she consents to it;
and reference to rape in other enactments (including the
following provisions of this Act) shall be construed accordingly."
[Emphasis is mine.]
104.1. A close examination of the definition of rape, as extracted above,
would show that it left, so to speak, a possibility of a defence being raised
based on the Common Law Doctrine, adverted to above, when the offender
was the husband and the victim his wife, because of the incorporation of the
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word "unlawful" along with the expression "sexual intercourse" in the
definition of rape.
104.2. This aspect came to the fore in a case which travelled to the House of
Lords from a judgment rendered by the Court of Appeal (Criminal Division)
in R. v. R. The Court of Appeal had rejected the appeal preferred by the
husband who was convicted for the offence of rape vis-a-vis his wife and in
the process had read down the MRE i.e., the Common Law Doctrine that a
husband cannot be held guilty of committing rape on his wife on the ground
that once she entered into matrimony, she could not revoke her consent for
sexual union.
104.3. Pertinently, the decision of the House of Lords in R. v. R. (this is
important from the point of view of arguments advanced before us as to why
this court should not enter the arena reserved for the legislature) impelled
the English Parliament to amend the subsisting law i.e., the Criminal Justice
and Public Order Act, 1994 by incorporating Section 142 in the said Act :
"PART XI
SEXUAL OFFENCES
Rape
142 Rape of women and men
For section 1 of the Sexual Offences Act 1956 (rape of a woman)
there shall be substituted the following section -
"Rape of woman or man
(1) It is an offence for a man to rape a woman or another man.
(2) A man commits rape if -
(a) he has sexual intercourse with a person (whether vaginal
or anal) who at the time of the intercourse does not consent to
it; and
(b) at the time he knows that the person does not consent to the
intercourse or is reckless as to whether that person consents to
it."
105. A careful perusal of the aforesaid provision would show that the law
in the UK was made, firstly, gender-neutral and, secondly, did away with the
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possibility of the Common Law Doctrine being used as a defence by
excising from the statute the word "unlawful" which preceded the
expression "sexual intercourse".
106. Unfortunately, for whatever reason, the shifting of sands of time went
unnoticed, as the legislative history of this country would show, qua MRE in
IPC. However, the incursion caused by deviant and extremely hard cases,
both, in the UK and India weighed with the lawmakers even when the first
draft of the IPC was considered before its enactment. Section 375, as it
exists today, in its earlier avatar i.e., in the draft IPC was referred to as
Clause 359. This Clause 359 read thus :
"OF RAPE
359. A man is said to commit "rape" who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the five following descriptions:
First.- Against her will.
Secondly.- Without her consent, while she is insensible.
Thirdly.- With her consent, when her consent has been obtained
by putting her in fear of death, or of hurt.
Fourthly.- With her consent, when the man knows that her consent
is given because she believes that he is a different man to whom
she is or believes herself to be married.
Fifthly.- With or without her consent, when she is under nine
years of age.
Explanation.- Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife is in
no case rape."
[Emphasis is mine.]
107. One would notice that Clause 359 did not define sexual intercourse as
widely as it obtains on the statute presently. Furthermore, it reinforced the
Common Law Doctrine without making room for girl-children, who in our
country, at that point in time, married at a very young age.
107.1. Besides this, I may add more as a trivia rather than anything else that,
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although Englishmen are known for their exactitude and precision, the
Exception used the expression "own wife" instead of "just wife" which, if
nothing else, was a surplusage.
107.2. That apart, "Note B. on the Chapter of General Exceptions" was
suggestive of the fact that the lawmakers of that time had decided to
incorporate the exception in Clause 359 based on a wrongly held notion, as I
view it, that amongst various conjugal rights, the husband had a unhindered
right to have sex with his wife whether or not she consented to it. The
relevant part of the said note is extracted hereafter :
"Note B.
ON THE CHAPTER OF GENERAL EXCEPTIONS
This chapter has been framed in order to obviate the necessity of
repeating in every penal clause a considerable number of
limitations.
Some limitations relate only to a single provision, or to a very
small class of provisions. Thus the exception in favour of true
imputations on character (clause 470) is an exception which
belongs wholly to the law of defamation, and does not affect any
other part of the Code. The exception in favour of the conjugal
rights of the husband (clause 359) is an exception which belongs
wholly to the law of rape, and does not affect any other part of the
Code. Every such exception evidently ought to be appended to the
rule which it is intended to modify. ..."
[Emphasis is mine.]
108. Fortunately, the draft, as it appears, was put up for further scrutiny
which resulted in a report being submitted by the Indian Law
Commissioners. Paragraphs 444 and 445 of the report are revealing as they
hemmed in the impact to some extent (I would say minuscule extent), where
a child - bride was concerned. The said paragraphs are extracted hereafter :
"444. Again Mr. Thomas objects to the "exception which declares
that sexual intercourse by a man with his own wife is in no case
rape." He says, "I doubt the propriety of this exception. The early
age at "which children are married and are in the eye of the law
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wives, makes "it necessary that protection should be given to
them by the law till "they are of age to reside with their husbands.
I remember a case of "forcible violation and great injury to a
child where the offender was "the husband." Mr. Hudleston and
Mr. A.D. Campbell concur with Mr. Thomas.
445. Although marriages are commonly contracted among
Mahomedans and Hindoos before the age of puberty on the part
of the female, yet usually the bride remains in the house of her
parents till she is of a fit age for the consummation of the
marriage, and it may be fairly presumed that the parents, her
natural guardians, will in general take care to prevent abuse in
this respect. There may however be cases in which the check of
the law may be necessary to restrain men from taking advantage
of their marital right prematurely. To meet such cases it may be
advisable to exclude from the exception cases in which the wife is
under nine years of age. Instances of abuse by the husband in
such cases will then fall under the 5th description of rape."
[Emphasis is mine.]
109. It is this which resulted in providing in the first statutory avatar of
Section 375 albeit in 1860, with a modification, that consent was immaterial
where a man indulged in coitus with his wife, who was under 10 years of
age, as against nine years provided in clause 359. However, the Common
Law Doctrine which appeared in Clause 359 continued to subsist, save and
except, that the exception would not operate where the wife was under 10
years of age. Clause 359 [which morphed into Section 375], when
incorporated in IPC in 1860, read as follows :
"375. A man is said to commit "rape" who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:
First. Against her will.
Secondly. Without her consent.
Thirdly. With her consent, when her consent has been obtained by
putting her in fear of death, or of hurt.
Fourthly. With her consent, when the man knows that he is not her
husband, and that her consent is given because she believes that
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he is another man, to whom she is or believes herself to be
lawfully married.
Fifthly. With or without her consent, when she is under ten years
of age.
Explanation. Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape."
"Exception. Sexual intercourse by a man with his own wife, the
wife not being under ten years of age, is not rape."
[Emphasis is mine.]
110. At this juncture, it would be also relevant to note as to how Section
376 read when it was incorporated in the statute for the first time. This is
relevant from the point of view of the argument put forth before us by
learned counsel for the parties with regard to "high minimum mandatory
sentence" of 10 years obtaining presently in Section 376(1) of the IPC.
"376. Whoever commits rape shall be punished with
transportation for life, or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable
to fine."
111. As noticed above, Section 375 in its original form made no distinction
based on age between a child who was subjected to forced sexual
intercourse whether by a husband or a stranger; the age threshold, however,
was kept under 10 years of age. This threshold was increased with the
amendment brought about in 1983 (Act 43 of 1983) when the age threshold
provided in the sixth circumstance, appended to Section 375, for a child, was
raised to "under sixteen years of age", even though insofar as the child-bride
was concerned, the threshold was kept at "under fifteen years of age" :
"Sixthly. - With or without her consent, when she is under sixteen
years of age.
Explanation.- Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
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Exception.- Sexual intercourse by a man with his own wife, the wife
not being under fifteen years of age, is not rape."
[Emphasis is mine.]
112. Besides this, the other relevant change which was brought about by
Act 43 of 1983 was that a fifth circumstance was added which, in effect,
legislatively disregarded consent given by a woman on account of the state
of her mind due to unsoundness, intoxication, administration of stupefying
or unwholesome substance administered either by the offender personally or
through another which disabled the victim from understanding the nature
and consequences of the act to which she had consented. Resultantly, what
was placed under "fifthly" earlier i.e., the provision which dealt with the
immateriality of consent said to have been granted by a child was
renumbered as "sixthly".
113. The threshold vis-à-vis an unmarried girl-child who was subjected to
sexual acts was raised by Act 13 of 2013 by enhancing the threshold to
"under eighteen years of age". The other relevant amendments brought
about by Act 13 of 2013 which included the expansion of the definition of
rape by inserting Clauses (a) to (d) in Section 375 (which were descriptive
of various sexual acts that a victim could be subjected to) and insertion of
certain other provisions like Explanations 1 and 2 (and the accompanying
proviso) and Exception 1; with MRE being renumbered as Exception 2.
113.1. To complete the narrative concerning the history of rape law, it needs
to be noticed that via the Criminal Law (Amendment) Act, 2018 (No.22 of
2018), amendments were brought about qua certain provisions of the IPC,
Evidence Act, the Code and the POCSO Act.
114. What exacerbated the dissonance between a girl-child who was
subjected to a sexual act within marriage as against the one who became a
victim of the act outside marriage was that for the former the threshold
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remained as "under fifteen years of age", while for the latter the threshold
was increased to "under eighteen years of age".
115. This anomaly was not corrected till the Supreme Court rendered its
judgment in Independent Thought whereby the threshold for a child bride
who is subjected to sexual intercourse by her husband was raised from
"under fifteen years of age" to "under eighteen years of age".
116. In Independent Thought, the Supreme Court squarely considered the
ambit of MRE, albeit, in the context of a child-bride as a result of
incongruity obtaining as to the threshold age as provided in the sixth
circumstance and Exception 2 appended to Section 375 and the POCSO Act.
116.1. Although the narration of submissions recorded hereinabove would
show that the petitioners have relied upon Independent Thought to
demonstrate that irrespective of the issue at hand, in that case, the
observations made therein concerning MRE would apply even to a married
woman aged 18 years and above, this position has been contested by counsel
for the intervenors who propound that the status quo should be maintained
till such time the legislature intervenes in the matter. As to whether the
observations in Independent Thought would apply given the disclaimers
made by the learned judges who authored the judgment is an aspect that I
would discuss in the latter part of the judgment.
117. For the moment, what I need to deal with immediately is the argument
advanced by Messrs Sai Deepak and Kapoor and others who support their
line of argument, which is, whether this court should, at all, examine the
issue at hand on account of its inability to entertain various stakeholders, I
presume this argument is made given the nature of court proceedings, and,
thus, perceived inability of this court to assimilate various views and
counter-views. An exercise which, according to them, can be performed
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only by the executive and/or the legislature. To put it pithily, the argument is
that if the court were to exercise powers under Article 226 and strike down
the MRE, it would in effect carry out a legislative act and, thus, blur the
Doctrine of Separation of Powers. In this context, it is argued in particular
by Mr Sai Deepak that it would deprive the "Bhartiya Legislature" of the
right to examine the issue threadbare, albeit, after undertaking a consultative
exercise by involving myriad stakeholders. In sum, the call is for exercising
"judicial restraint".
II. Separation of Powers
118. To my mind, this argument fails to recognize the fundamental
concepts which are subsumed in our Constitution. The framers of the Indian
Constitution attempted to draw the best from various constitutions and
constituent documents available to them at the cusp of Independence. Some
of the models that were available to the framers of our Constitutions at that
juncture were (i) the United States (US) Constitution; (ii) the Constitution
Acts enacted by the British Parliament establishing Federal Constitutions not
only for India but countries like Canada and Australia; importantly, these
documents drew inspiration from the American experience. [See H.M.
Seervai, Constitutional Law of India, Fourth Edition, Vol. 1, 1A.9 at page
158.]
118.1. The US Constitution adopted the Doctrine of Separation of Powers,
albeit, in the mistaken belief that English precedent was being followed. The
Constitution of Canada, Australia and to a limited extent the Government of
India Act, 1935 provided for an executive who was responsible to the
legislature. Thus, the framers of the Indian Constitution adopted a system of
Parliamentary Executive in preference to a Presidential system adopted in
the US. Notably, in the US, the President is not responsible to the
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legislature. The legislative business is carried out by Congress. The
President is answerable only to the people who elected him. His Cabinet
comprises persons who are referred to as Secretaries. Secretaries are
appointed and removed by the President whereas, in India, the head of a
successful party is, ordinarily, appointed as the Prime Minister whose
Cabinet consists of Ministers, who are members of one or other House of the
Parliament. The only exception to this prescription is when a person, who is
appointed as a Minister in the Union Government and is not a member of
either House of the Parliament, he is required to get elected to one or the
other House of the Parliament within six months as otherwise, he would
cease to be a Minister. [See Article 75(5) of the Constitution.] Although, like
in the US, we have a President, who is the Commander-in-Chief of the
armed forces, the comparison ends there. The President in our country acts
like the sovereign of Great Britain on the advice of his Ministers who are
responsible to the Parliament and, who, wield the real executive power.
119. To appreciate the point at hand, it is important to remember that the
Doctrine of Separation of Powers and the Doctrine that the Legislatures are
Delegates of the People [which is the basic doctrine of the US Constitution]
do not form part of the Constitution of India. The framers of our
Constitution rejected the Presidential form of Government, that is, an
Executive independent of the Legislature and instead adopted the British
model of government that is an Executive/ Cabinet which is responsible to
and removable by the Legislature. [See H.M. Seervai, Constitutional Law of
India, Fourth Edition, Vol. I, 1A.10 & 13 at pages 158 & 159.]
120. That said, while the framers of our Constitution did not adopt the
Presidential system of government, we did adopt other features of the US
Constitution which were not found in the Constitutions prevalent in Canada
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and Australia. For instance, aspects which form part of the Bill of Rights in
the US were made part of the Chapter on Fundamental Rights in the Indian
Constitution. Our Preamble employs language which is somewhat similar to
the American Constitution and accordingly our Constitution opens with the
words : "WE, THE PEOPLE OF INDIA..." And likewise, insofar as the
country's social and economic objectives were concerned, these were not
restricted just to the Preamble but following the example of Irish Free State,
they were provided in Part IV of the Constitution and titled as "Directive
Principles of the State Policy" which were declared fundamental in the
governance of the country but were not made enforceable. [See H.M.
Seervai, Constitutional Law of India, Fourth Edition, Vol. I, 1A.11 at pages
158 & 159.]
121. The aforesaid broad framework of our Constitution is captured by
Chief Justice B.K. Mukherjea [as he then was] in a decision rendered by him
in Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 22535 :
"12. It may not be possible to frame an exhaustive
definition of what executive function means and implies.
Ordinarily, the executive power connotes the residue of
governmental functions that remain after legislative and judicial
functions are taken away. The Indian Constitution has not indeed
recognised the doctrine of separation of powers in its absolute
rigidity but the functions of the different parts or branches of the
Government have been sufficiently differentiated and
consequently it can very well be said that our Constitution does
not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another. The executive indeed
can exercise the powers of departmental or subordinate
legislation when such powers are delegated to it by the
legislature. It can also, when so empowered, exercise judicial
functions in a limited way. The executive Government, however,
can never go against the provisions of the Constitution or of any
law.
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xxx xxx xxx
14. In India, as in England, the executive has to act subject to
the control of the legislature; but in what way is this control
exercised by the legislature ? Under article 53(1) of our
Constitution, the executive power of the Union is vested in the
President but under article 75 there is to be a Council of
Ministers with the Prime Minister at the head to aid advise the
President in the exercise of his functions. The president has thus
been made a formal or constitutional head of the executive and
the real executive powers are vested in the Ministers or the
Cabinet. The same provisions obtain in regard to the Government
of States; the Governor or the Rajpramukh, as the case may be,
occupies the position of the head of the executive in the State but
it is virtually the council of Ministers in each State that carries on
the executive Government. In the Indian Constitution, therefore,
we have the same system of parliamentary executive as in
England and the council of Ministers consisting, as it does, of the
members of the legislature is, like the British Cabinet, "a hyphen
which joins, a buckle which fastens the legislative part of the State
to the executive part." The Cabinet enjoying, as it does, a majority
in the legislature concentrates in itself the virtual control of both
legislative and executive functions; and as the Ministers
constituting the Cabinet are presumably agreed on fundamentals
and act on the principle of collective responsibility, the most
important questions of policy are all formulated by them.
xxx xxx xxx
19. ...As we have said already, the executive Government are
bound to conform not only to the law of the land but also to the
provisions of the Constitution. The Indian Constitution is a
written Constitution and even the legislature cannot override the
fundamental rights guaranteed by it to the citizens. Consequently,
even if the acts of the executive are deemed to be sanctioned by
the legislature, yet they can be declared to be void and
inoperative if they infringe any of the fundamental rights of the
petitioners guaranteed under Part III of the Constitution. ...."
[Emphasis is mine.]
122. Following the same ethos as was captured in Ram Jawaya Kapur's
case, a Constitution Bench of the Supreme Court in Kalpana Mehta & Ors.
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v. Union of India & Ors., (2018) 7 SCC 136, made some pointed
observations on Separation of Powers and the role of the Constitutional
Courts in that framework. The question that fell for consideration was:
whether the court could place reliance upon a report of the Parliamentary
Standing Committee while exercising jurisdiction under Article 32 and 136
of the Constitution. Hon'ble Dr Justice D.Y. Chandrachud in his concurring
judgment after adverting to a whole host of material veered to the view that
separation of powers was a "nuanced doctrine". It involved "division of
labour" and "checks and balances". Importantly, it was emphasized that the
Indian Constitution, while recognizing the doctrine of separation of powers,
had not adopted the same in its absolute rigidity. As to how the doctrine of
separation of powers is to play out in real terms is best understood by
adverting to the following dicta contained in the judgment :
"246. In I.R. Coelho v. State of T.N. [I.R. Coelho v. State of T.N.,
(2007) 2 SCC 1], the Court underlined the functional
complementarity between equality, the rule of law, judicial review
and separation of powers : (SCC p. 105, para 129)
"129. Equality, rule of law, judicial review and separation
of powers form parts of the basic structure of the
Constitution. Each of these concepts are intimately
connected. There can be no rule of law, if there is no
equality before the law. These would be meaningless if the
violation was not subject to the judicial review. All these
would be redundant if the legislative, executive and judicial
powers are vested in one organ. Therefore, the duty to
decide whether the limits have been transgressed has been
placed on the judiciary."
xxx xxx xxx
255. Parliament and the State Legislatures legislate. The
executive frames policies and administers the law. The judiciary
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decides and adjudicates upon disputes in the course of which facts
are proved and the law is applied. The distinction between the
legislative function and judicial functions is enhanced by the
basic structure doctrine. The legislature is constitutionally
entrusted with the power to legislate. Courts are not entrusted
with the power to enact law. Yet, in a constitutional democracy
which is founded on the supremacy of the Constitution, it is an
accepted principle of jurisprudence that the judiciary has the
authority to test the validity of legislation. Legislation can be
invalidated where the enacting legislature lacks legislative
competence or where there is a violation of fundamental rights. A
law which is constitutionally ultra vires can be declared to be so
in the exercise of the power of judicial review. Judicial review is
indeed also a part of the basic features of the Constitution.
Entrustment to the judiciary of the power to test the validity of law
is an established constitutional principle which co-exists with the
separation of powers. ....
...256. This discussion leads to the conclusion that while the
separation of powers, as a principle, constitutes the cornerstone
of our democratic Constitution, its application in the actual
governance of the polity is nuanced. The nuances of the doctrine
recognise that while the essential functions of one organ of the
State cannot be taken over by the other and that a sense of
institutional comity must guide the work of the legislature,
executive and judiciary, the practical problems which arise in the
unfolding of democracy can be resolved through robust
constitutional cultures and mechanisms. The separation doctrine
cannot be reduced to its descriptive content, bereft of its
normative features. Evidently, it has both normative and
descriptive features. In applying it to the Indian Constitution, the
significant precept to be borne in mind is that no institution of
governance lies above the Constitution. No entrustment of power
is absolute."
[Emphasis is mine.]
123. Thus, unlike the US Constitution, our Constitution is not based on
rigid separation of powers, although, it provides for a separate Legislature,
the Executive and the Judiciary. Illustratively, the Supreme Court has
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advisory jurisdiction under Article 143 of the Constitution and likewise,
legislative power is vested in the judiciary. [See Sections 122 and 129 of the
CPC; also see H.M. Seervai, Constitutional Law of India, Fourth Edition,
Vol. III, paragraph 25.42 at page 2636.]
124. Similarly, under the Constitution, the Legislature also exercises quasi-
judicial powers. [See Tenth Schedule read with Article 102(2) of the
Constitution.] These provisions concern the disqualification of a person who
is a Member of the Parliament on the ground of defection. The decision
concerning such persons rests with the Chairman or Speaker of the House,
as the case may be. [See Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC
651 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly,
(2020) 2 SCC 595.]
III Judicial Restraint
125. Having, thus, broadly, established that the rigid separation of powers
doctrine does not apply in the Indian context, what is required to be
examined is whether this court should, as contended by Messrs Sai Deepak
and Kapoor, refrain from examining the contention of the petitioners that the
impugned provisions (which includes MRE) are violative of married
women's fundamental rights under Article 14, 15, 19(1)(a) and 21 of the
Constitution. The argument is suggestive of the fact that the court does not
have the jurisdiction or the requisite wherewithal to examine the grievance
articulated by the petitioners.
125.1. Article 13 of the Constitution, in my view, enjoins the Constitutional
court to declare any law, which is in force in India, whether enacted before
the commencement of the Constitution or thereafter, "void" if it is found to
be inconsistent or takes away and/or abridges the rights conferred by Part III
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of the Constitution. The expression "inconsistent" found in Clause (1) and
likewise, the expression "in contravention" found in Clause (2) of Article 13
mean one and the same thing. The expression "inconsistent" applies to laws
enacted prior to the Constitution being adopted and being brought into force
while the expression "in contravention" applies to laws which are enacted
after the Constitution was adopted and brought into force. Between them,
they cover the entire field and, thus, empower the court to declare void any
law which violates the person's fundamental rights. The only exception
being any amendment made to the Constitution under Article 368; Article 13
does not apply to such situation. [See Article 13(4).] The remedies for
enforcing fundamental rights are provided in Article 32 [which falls in Part
III of the Constitution] and Article 226 which confers power on the High
Courts to issue various writs not only for the enforcement of rights conferred
under Part III but also for "any other purpose". Clause (1) of Article 226 is a
non-obstante clause which confers this power on the High Courts.
Therefore, to suggest that the issue at hand can only be dealt with by the
Executive of the day or the Legislature is unpersuasive. The submission that
the issues involved concern a policy decision which, in turn, requires wide-
ranging consultations with members of the public and domain experts
misses, if I may say so, the wood for the trees inasmuch as it fails to accept
that what the court has before it is a legal issue i.e., whether or not the
impugned provisions (which includes MRE) violate a married woman's
fundamental rights conferred under the Constitution.
126. The argument in substance is that the Court must exercise judicial
self-restraint concerning the matter at hand and leave the working out of
remedies for a married woman to the legislative wisdom. The further
iteration of this argument is, that this Court should allow the Executive
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and/or the Legislature (in consonance with the Doctrine of Separation of
Powers) to examine the issue in the absence of judicially discoverable and
manageable standards for resolving the lis. It is thus emphasised that this
issue cannot be decided without initial policy formulation.
126.1. The thrust of the submissions made in this behalf by the intervenors is
that if the Court were to adjudicate the issue at hand, it would take the power
out of the hands of the people, which is, represented by the Parliament and,
thus, would seriously diminish its standing.
126.2. These submissions tend to suggest that on account of the factors
adverted to above, the aspects involved in the instant matters should be left
best to be handled, by the Executive who in turn would engage in a
consultative process being in effect the political party having majority in the
Parliament. In other words only when the consultative process culminates in
a legislative intervention can a solution be found qua the issues raised in the
writ petitions. In an ideal circumstance this route could perhaps have been
adopted but the grief that MRE has caused over the years impels me to deal
with it as legal cause [which it is] seeking declaration of rights and the
remedies that flow therefrom. Therefore, these submissions, in my opinion,
have no merit.
126.3. There are enough and more judicial precedents which clearly establish
that even actions which assail sovereign or legislative acts have been
entertained by Courts whenever they impinge upon fundamental rights of
the citizen. Therefore, the submission that intercession by court will
diminish its standing is, in my view, a submission that is clearly flawed. As
a matter of fact "...National respect for the courts is more enhanced through
the forthright enforcement of those rights rather than by rendering them
nugatory through the interposition of subterfuges." [See Baker v. C Carr,
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1962 SCC OnLine US SC 40, at page 711, Clark, J.; also see A.K. Roy v.
Union of India, (1982) 1 SCC 271, paragraphs 26-27; and Madhav Rao
Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85, paragraph 45.]
127. Furthermore, for my part, this submission also represents, if I may say
so, a half-truth. If it was a question concerning an economic policy or
economic theory, I would easily defer to the wisdom of the Executive of the
day and/or the Legislature as it is essentially experimental and requires a
"play in the joints". [See R.K. Garg v. Union of India, (1981) 4 SCC 675.]
As alluded to above, the Doctrine of Judicial Self-Restraint is not applicable
in cases which involve the determination of controversies that involve
alleged infractions of fundamental rights by the State, in the context of
violation of civil rights/human rights. Side-stepping such issues would be
akin to the court seeking "an alibi" for refusing to decide a legal
controversy, which it is obliged in law to decide. The perceived "harm to its
reputation or prestige" can be of little consequences. [See H.M. Seervai,
Constitutional Law of India, Fourth Edition, Vol.III, paragraph 25.46, at
page 2640.]
128. Thus, "shunning responsibility" to decide what falls within the ken of
the court and leaving it to the Executive and/or the Legislature, in my view,
would constitute abandonment of the duty and the role which the
Constitution has defined for the courts. Courts are engaged in the job of
adjudication which involves the application of the law which includes the
provisions of the Constitution to a given set of facts. Areas that the courts
cannot venture into are carved out by the law. While I do not doubt that the
issues at hand involve substantial questions of law which require
examination in the light of relevant statutes and the provisions of the
Constitution, there is to my mind, no better forum to rule on these issues
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than the court itself.
128.1. The contention advanced by Messrs Sai Deepak and Kapoor as also
those who support this argument does not impress me and, hence, is
rejected.
129. Having cleared the deck, let me straight away deal with the elephant
in the room i.e., why, according to me, the impugned provisions including
MRE are problematic.
IV Ambit of Section 375 of IPC
130. This would require one, to layout, in the first instance, the broad
contours of Section 375. A close perusal of Section 37537 would show that it
37
375. Rape.- A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to
do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra
or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other
person, under the circumstances falling under any of the following seven descriptions:
First.Against her will.
Secondly.Without her consent.
Thirdly.With her consent, when her consent has been obtained by putting her or any person in whom she is
interested, in fear of death or of hurt.
Fourthly.With her consent, when the man knows that he is not her husband and that her consent is given
because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.With her consent when, at the time of giving such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.With or without her consent, when she is under eighteen years of age.
Seventhly.When she is unable to communicate consent.
Explanation 1.For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or
any form of verbal or non-verbal communication, communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only
of that fact, be regarded as consenting to the sexual activity.
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firstly, describes various sexual acts in Clauses (a) to (d) and then lists out
the circumstances in which those sexual acts would result in the commission
of the offence of rape. Pertinently, Clauses (a) to (d) do not confine the
scope of sexual acts, described therein, to a situation where the offender
himself commits those acts but also extends the ambit of those very acts
when the victim is made to perform the said acts with "any other person".
130.1. The "circumstances" that have been listed out, in which, sexual acts
described in Clauses (a) to (d) will constitute rape, are seven in number.
Besides this, the section includes two explanations i.e., Explanations 1 and
2. With Explanation 2, a proviso is appended. In addition thereto, two
exceptions are carved out i.e., Exceptions 1 and 2. Exception 2 i.e., MRE is
in the crosshair of instant challenge laid before the Court.
130.2. Therefore, the import of the provision i.e., Section 375, at present, is
as follows: That one or more sexual acts referred to in Clauses (a) to (d)
would constitute rape if the victim is a woman aged 18 years and above
finds herself in one or more of the seven circumstances set forth therein.
130.3. The first circumstance alludes to situation when sexual act(s) are
committed against her will, which, to my mind, would mean that while the
woman-victim is in possession of her senses and, therefore, even though
capable of giving her consent, does not give her consent to participation in
the sexual act. In other words, the expression "against her will", involves an
element of resistance and opposition by the victim.
130.4. The second circumstance i.e., "without her consent", in my opinion,
would be an act which is not accompanied by intelligent deliberation, as to
the nature and consequences of the sexual act or is based on a false
Exception 1.A medical procedure or intervention shall not constitute rape.
Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen
years of age, is not rape.
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misrepresentation of a fact at the time when the act was committed or by
subjecting the victim to "inevitable compulsion" such as fear of injury or
death.38 Therefore, there may be a certain amount of overlap between the
first and the second circumstance. The consent given in inevitable
circumstances which tantamount to submission would overlap with the third
and fifth circumstance.
130.5. The third circumstance addresses a situation where, although, the
woman victim is said to have given her consent, the law disregards it if it is
obtained by putting the woman-victim or any person that she is interested, in
fear of death or hurt.
130.6. Likewise, in the fourth circumstance as well, the law disregards the
woman victim's consent when the offender knows that he is not the woman
victim's husband and while giving consent, she believes that the offender is
another person to whom she is or believes herself to be lawfully married.
The instance that, perhaps, could fall in this circumstance could be, say, the
case of identical twins.
130.7. The fifth circumstance where the law disregards the woman's consent
if, at the time when the woman-victim gives her consent, she is found to be
unsound of mind or intoxicated or has been administered by the offender
personally or through another any stupefying or unwholesome substance,
disabling her from understanding the nature and consequences of the act to
which she is said to have given consent.
130.8. Thus, in situations covered by the fourth and fifth circumstances, even
though the sexual acts are committed with the consent of the concerned
woman, they are disregarded, as in one case the consent is obtained by
putting the woman-victim in fear while in the other situation i.e., the fourth
38
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circumstance, the offender employs a deception of a particular kind.
130.9. The sixth circumstance covers a situation where a girl child is
subjected to sexual acts, adverted to in Clauses (a) to (d) of Section 375. The
law in such situations considers the girl victim's consent immaterial or of no
consequences given the fact that she is under 18 years of age.
130.10. The seventh circumstance is self-explanatory as it covers the
situation where the woman victim is unable to communicate consent.
131. The aforementioned circumstance as also the other circumstances,
adverted to in Section 375, has to be read with Explanation 2 which provides
as to what would constitute consent. According to Explanation 2, consent
means an unequivocal voluntary agreement whereby a woman
communicates her willingness to participate in a specific sexual act and this
communication can be made via words, gestures or any form of verbal or
non-verbal communication. What is important is that the proviso makes it
amply clear that only because a woman does not physically resist the act of
penetration, shall not, because of this fact alone, be construed that the
woman-victim consented to sexual activity. Thus, mere passivity or lack of
resistance to a sexual act cannot be construed as consent.
131.1. To deduce consent, one would have to look at the forms of
communications alluded to in Explanation 2.
131.2. Explanation 1 adverts to the fact that the vagina would include labia
majora which is the two outer folds of the vulva i.e., the external part of the
female genitalia. It appears that Explanation 1 has been incorporated to
dilate and perhaps remove the possibility of a defence being raised that the
sexual activity, described in Clauses (a) to (d) in Section 375, did involve
the concerned female's genitalia [i.e., the vagina] and hence did not
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constitute rape.
131.3. Exception 1 excludes medical procedure or intervention from the
offence of rape.
132. Exception 2 [i.e., MRE], in effect, saves from the rigour of the main
provision which deals with the offence of rape, one category of offender
(i.e., a husband) even though he subjects his wife who is not under 18 years
of age to sexual acts, described in Clauses (a) to (d) of Section 375.
133. Sub-section (1) of Section 376 provides for punishment for rape,
which, as prescribed, is rigorous punishment with a mandatory minimum
sentence of 10 years, with a possibility of it being extended to imprisonment
for life besides being mulct with a fine as well. The sub-section (2) of
Section 376 covers cases of aggravated rape which include rape committed
in custody39, by a relative40, guardian or teacher or by a person in a position
of trust or authority, and on women placed in vulnerable circumstances41
accompanied by an element of depravity. In cases covered under Section
376(2), the minimum mandatory sentence is 10 years which can extend to
imprisonment for life; which, as the provision goes on to clarify, means
imprisonment for the remainder of that person's natural life, in addition to,
being burdened with fine.
133.1. Besides this, the other forms of aggravated rape are, inter alia,
covered under Sections 376A (causing death resulting in a persistent
vegetative state of the victim) and 376D (gang-rape). The punishment
prescribed for these offences is much harsher. Under Section 376A, even a
death sentence can be imposed on the offender.
134. Section 376B (read with explanation) concerns sexual acts, as
39
Section 376(2)(a) to (e)
40
Section 376(2)(f)
41
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described in Clauses (a) to (d) to Section 375 which, if a husband subjects
his wife to, while they are living separately under a decree of separation or
otherwise, albeit, without her consent, is a punishable offence. The
punishment though, which the legislature prescribes for an offence covered
under the said provision is less rigorous. The prescribed minimum
mandatory sentence of imprisonment is two years, which may extend to
seven years, accompanied by imposition of a fine.
135. Thus, a careful perusal of the aforementioned provisions, in particular
Section 375, would demonstrate the following.
135.1. Section 375 is concerned with the acts described in Clauses (a) to (d)
which would morph into an offence of rape if committed in the seven
circumstances, alluded to therein. Absent the seven circumstances, the acts,
described in Clauses (a) to (d) of Section 375, do not acquire a criminal hue.
135.2. A close reading of the circumstances would reveal that except for the
sixth circumstance (which concerns a girl-child under 18 years of age),
willingness (as in the first circumstance) and consent (as in the second to
fifth and seventh circumstance)- form the basis of separating acts which are
lawful from those which are construed as unlawful. The circumstances are
clearly agnostic to the relationship between the offender and the woman
victim. Therefore, whether the offender is a stranger or a partner in a live-in
relationship, he would fall within the purview of the offence of rape if he
commits, sexual acts with a woman victim, as described in Clauses (a) to (d)
of Section 375, under the seven circumstances, adverted to hereinabove.
Consequentially, every woman victim, except a married woman, has the
right to trigger criminal proceedings against the offender if she is subjected
to forced sexual activity.
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135.3. The firewall that is created via Exception 2 to Section 375/MRE vis-
à-vis an offending husband, who subjects his wife to a non-consensual
sexual act, is, thus, the main focus of the petitioners challenge in the writ
petitions.
V In defence of MRE
136. In defence of the impugned provisions, in particular MRE, the
following broad arguments are advanced.
(i) First, the distinction that MRE makes between married and unmarried
women is constitutionally viable.
(ii) Second, the IPC itself contains provisions which are relationship-
centric.
(iii) Third, the legislature has provided various avenues to enable a victim
to seek redressal against spousal violence. In this context, reference was
made to Section 376B and Section 498A of the IPC, as also, to the
provisions of the D.V. Act.
(iv) Fourth, the husband has a "conjugal expectation" to inter alia have
sex with his wife.
(v) Fifth, while the legislature does not condone spousal sexual violence,
it chooses not to label the act as rape as it seeks to protect families including
progeny. In other words, the State has a legitimate interest in protecting the
institution of marriage.
(vi) Sixth, there is a palpable and real apprehension that striking down
MRE could result in the lodgment of false cases.
(vii) Seventh, if the husband is prosecuted for marital rape, it would result
in the State invading a married couple's private space. Being a closed space,
it would be well-nigh impossible for the State to collect evidence concerning
the allegation of rape.
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(viii) Eighth, the striking down of MRE would create a "new offence" by
criminalizing an act which up until now was not construed as an offence.
The Court is not vested with such power, this power is reserved well and
truly for the legislature.
V(i) Constitutional viability of classification between married and
unmarried women in the context of Article 14.
137. To answer the question as to whether a classification based on the
relationship between the offender and victim is constitutionally viable, one
would have to examine whether the classification has an intelligible
differentia with the object which is sought to be achieved. There can be no
doubt that the legislature seeks to punish offenders who are guilty of
committing rape; this principle is the bedrock on which Section 375 of the
IPC is founded. It cannot, perhaps, also be doubted that there is a differentia
between married, separated and unmarried couples. However, what needs to
be established once the differentia is accepted is : whether the differentia
between married and unmarried couples has a rational nexus with the object,
which the main provision seeks to achieve, that is, protecting a woman from
being subjected to a sexual act against her will or her consent. MRE does not
meet the nexus test as it grants impunity to an offender based on his
relationship with the victim. In other words, it grants impunity qua an act
which would otherwise fall within the offence of rape under the main
provision [i.e., Section 375] only for the reason it is committed within the
bounds of marriage.
137.1. The classification, in my opinion, is unreasonable and manifestly
arbitrary as it seems to convey that forced sex outside marriage is "real
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rape"42 and that the same act within marriage is anything else but rape. A
'chaste woman'43 or a young girl - is more likely to be considered a 'victim';
but not a married woman. A prior sexual relationship is regarded as a
reasonable defence because consent is assumed; but in the case of a married
woman, it is not even put to test. Sex- worker has been invested with the
power to say "no"; by the law; but not a married woman. In a gang rape
involving the husband of the victim, the co-accused will face the brunt of the
rape law; but not the offending husband only because of his relationship
with the victim. A married woman's ability to say "no" to sexual communion
with her husband when he is infected with a communicable disease or she is
herself unwell finds no space in the present framework of rape law. Thus the
rape law as it stands at present is completely skewed insofar as married
women are concerned. To a woman who is violated by her husband by being
subjected to the vilest form of sexual abuse (i.e., rape) it is no answer to say
that the law provides her other remedies. When marriage is a tyranny, the
State cannot have a plausible legitimate interest in saving it. In every sense,
MRE, in my view, violates the equality clause contained in Article 14 of the
Constitution. Article 14 of the Constitution not only guarantees that the State
shall not deny to any person equality before the law but also guarantees that
every person within the territory of India will have equal protection of the
laws. MRE with one stroke deprives nearly one-half of the population of
equal protection of the laws. The classification between married and
unmarried women in the context of MRE (and what is observed
hereinabove) is without doubt unreasonable. The test as to what is construed
42
Kersti Yllo and M. Gabriela Torres , Marital Rape -Consent, Marriage and Social Change in Global
Context
43
Kersti Yllo and M. Gabriela Torres, Marital Rape -Consent, Marriage and Social Change in Global
Context: Prologue - Understanding Marital Rape in Global Context, Kersti Yllo, page 1
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unreasonable by the courts in the context of a provision in the legislation or
subordinate legislation is articulated in Kruse v. Johnson, (1898) 2 QB 91
which followed an earlier Privy Council judgment rendered in Slattery v.
Naylor, (1888) 13 App. Cas. 446:
"..... I do not mean to say that there may not be cases in which it
would be the duty of the court to condemn bye-laws, made under
such authority as these were made, as invalid because[ they were]
unreasonable. But unreasonable in what sense? If, for instance,
they were found to be partial and unequal in their operation as
between different classes; if they were manifestly unjust; if they
disclose bad faith; if they involve such oppressive or gratuitous
interference with the rights of those subject to them as could find
no justification in the minds of reasonable men, the Court may
well say, 'Parliament never intended to give authority to make
such rules; they are unreasonable and ultra vires.' But it is in this
sense, and in this sense only, as I conceive, that the question of
unreasonableness can properly be regarded. A bye-law is not
unreasonable merely because particular judges may think that it
goes further than is prudent or necessary or convenient, or
because it is not accompanied by a qualification or an exception
which some judges may think ought to be there."
[Emphasis is mine.]
138. If one were to apply the aforesaid test the only conclusion that can be
drawn is that the classification between married and unmarried couples in
the context of forced sex is not just unequal in its operation but is also
manifestly unjust. MRE, in my opinion, is also oppressive as it can find no
justification in the minds of reasonable men, for law makers could never
have intended to make such a law. The Kruse v. Johnson test has been cited
with approval by the Supreme Court in the following cases :
(i) Trustees of the Port of Madras v. Aminchand PyareLal, (1976) 3
SCC 167. [See paragraph 23 at page 178.]
(ii) Maharashtra State Board of Secondary & Higher Secondary
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Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors., (1984) 4 SCC
27. [See paragraph 21 at pages 49 - 50.]
(iii) Shri Sitaram Sugar Co. Ltd. & Anr. v. Union of India & Ors.,
(1990) 3 SCC 223. [See paragraph 47 at page 251.]
(iv) Supreme Court Employees' Welfare Association v. Union of India &
Anr., (1989) 4 SCC 187.
138.1. The classification, as is well established, should have a "causal
connection" between what is sought to be classified and the object of the
provision or, the statute. Over-emphasis on the classification test bears the
risk of giving precedence to form over substance. The following
observations made by Hon'ble Dr Justice D.Y. Chandrachud in Navtej Singh
Johar capture the essence of the width and amplitude of Article 14 when
applied to real-life situations :
"408. A litany of our decisions - to refer to them individually
would be a parade of the familiar - indicates that to be a
reasonable classification under Article 14 of the Constitution, two
criteria must be met: (i) the classification must be founded on an
intelligible differentia; and (ii) the differentia must have a
rational nexus to the objective sought to be achieved by the
legislation. There must, in other words, be a causal connection
between the basis of classification and the object of the statute. If
the object of the classification is illogical, unfair and unjust, the
classification will be unreasonable.
409. Equating the content of equality with the reasonableness of
a classification on which a law is based advances the cause of
legal formalism. The problem with the classification test is that
what constitutes a reasonable classification is reduced to a mere
formula: the quest for an intelligible differentia and the rational
nexus to the object sought to be achieved. In doing so, the test of
classification risks elevating form over substance. The danger
inherent in legal formalism lies in its inability to lay threadbare
the values which guide the process of judging constitutional
rights. Legal formalism buries the life-giving forces of the
Constitution under a mere mantra. What it ignores is that Article
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14 contains a powerful statement of values - of the substance of
equality before the law and the equal protection of laws. To
reduce it to a formal exercise of classification may miss the true
value of equality as a safeguard against arbitrariness in state
action. As our constitutional jurisprudence has evolved towards
recognizing the substantive content of liberty and equality, the
core of Article 14 has emerged out of the shadows of
classification. Article 14 has a substantive content on which,
together with liberty and dignity, the edifice of the Constitution is
built. Simply put, in that avatar, it reflects the quest for ensuring
fair treatment of the individual in every aspect of human endeavor
and in every facet of human existence."
[Emphasis is mine.]
139. The Supreme Court made somewhat similar observations while
examining the constitutional validity of Section 2(q) of the D.V Act which
excluded from the definition of the respondent (against whom an action is
filed), all persons except an adult male from the purview of the Act in
Harsora v. Harsora :
"32. Article 14 is in two parts. The expression "equality before
law" is borrowed from the Irish Constitution, which in turn is
borrowed from English law, and has been described in State of
U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14, as the negative
aspect of equality. The "equal protection of the laws" in Article
14 has been borrowed from the 14th Amendment to the U.S.
Constitution and has been described in the same judgment as the
positive aspect of equality namely the protection of equal laws.
Subba Rao, J. stated: (SCR pp. 34-35 : AIR p. 1134, para 26)
"26. ... This subject has been so frequently and recently
before this court as not to require an extensive
consideration. The doctrine of equality may be briefly
stated as follows: All persons are equal before the law is
fundamental of every civilised constitution. Equality before
law is a negative concept; equal protection of laws is a
positive one. The former declares that every one is equal
before law, that no one can claim special privileges and
that all classes are equally subjected to the ordinary law of
the land; the latter postulates an equal protection of all
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alike in the same situation and under like circumstances.
No discrimination can be made either in the privileges
conferred or in the liabilities imposed. But these
propositions conceived in the interests of the public, if
logically stretched too far, may not achieve the high
purpose behind them. In a society of unequal basic
structure, it is well-nigh impossible to make laws suitable
in their application to all the persons alike. So, a
reasonable classification is not only permitted but is
necessary if society should progress. But such a
classification cannot be arbitrary but must be based upon
differences pertinent to the subject in respect of and the
purpose for which it is made."
33. In Lachhman Dass v. State of Punjab, (1963) 2 SCR 353,
Subba Rao, J. warned that over emphasis on the doctrine of
classification or an anxious and sustained attempt to discover
some basis for classification may gradually and imperceptibly
deprive Article 14 of its glorious content. That process would
inevitably end in substituting the doctrine of classification for the
doctrine of equality. This admonition seems to have come true in
the present case, as the classification of "adult male person"
clearly subverts the doctrine of equality, by restricting the reach
of a social beneficial statute meant to protect women against all
forms of domestic violence.
34. We have also been referred to D.S. Nakara v. Union of India,
(1983) 1 SCC 305. This judgment concerned itself with pension
payable to Government servants. An office Memorandum of the
Government of India dated 25-5-1979 restricted such pension
payable only to persons who had retied prior to a specific date. In
holding the date discriminatory and arbitrary and striking it
down, this Court went into the doctrine of classification, and cited
from Special Courts Bill,1978. InRe: (1979) 2 SCR 476
and Maneka Gandhi v. Union of India, (1978) 2 SCR 621, and
went on to hold that the burden to affirmatively satisfy the court
that the twin tests of intelligible differentia having a rational
relation to the object sought to be achieved by the Act would lie
on the State, once it has been established that a particular piece
of legislation is on its face unequal. The Court further went on to
hold that the petitioners challenged only that part of the scheme
by which benefits were admissible to those who retired from
service after a certain date. The challenge, it was made clear by
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the Court, was not to the validity of the Scheme, which was wholly
acceptable to the petitioners, but only to that part of it which
restricted the number of persons from availing of its benefit."
[Emphasis is mine.]
140. Therefore, the court should eschew the proclivity of over-emphasizing
the test of classification if Article 14 is to be applied with full vigour; which
postulates affording equal protection of the laws to persons who are placed
in similar and like circumstances. While doing so, the court should examine
closely how the impugned statute/provision operates on the ground i.e., what
is its real effect and impact on the persons who come within the sway of the
statute/impugned provision. In doing so, the court should disregard remote
and indirect consequences that may entail by virtue of the impugned
statute/provision. [See Anuj Garg.] Thus, the Doctrine of Classification
which has been forged by constitutional courts to give practical content to
the doctrine must ultimately subordinate itself to the prime principle, which
is, that the fundamental right of the aggrieved person to seek equality before
a law is preserved. [See Lachhman Dass.]
141. The immediate deleterious impact of the provisions of MRE is that
while an unmarried woman who is the victim of the offence of rape stands
protected and/or can take succour by taking recourse to various provisions of
the IPC and/ the Code, the same regime does not kick-in if the complainant
is a married woman. In this context, one may have regard to the following
provisions of the IPC and the Code : Section 228A of the IPC prevents
disclosure of the identity of a rape victim except in certain circumstances set
out therein. Likewise, Section 26 of the Code provides that the offences
concerning rape/aggravated rape shall be tried as far as practicable by a
court presided by a woman. Section 53A empowers a medical practitioner to
examine, a person charged with committing an offence of rape if he has
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reasonable grounds for believing that such examination will furnish
evidence with regard to the commission of the offence. The first proviso to
Section 154 mandates if information is given by a woman victim, inter alia,
with regard to the offence of rape or its attempt, having been committed on
her, such information shall be recorded by a woman police officer/any
woman officer. Similarly, the second proviso to Section 161of the Code also
requires the statement of the woman victim to be recorded by a woman
police officer or by any woman officer. Under Section 164A, medical
examination, albeit, with the consent of the woman-victim is to be
conducted by a registered medical practitioner within 24 hours of
information being received with regard to commission of offence of rape,
while under the first proviso appended to Section 309, the inquiry or trial
relating to the offence of rape is ordinarily to be completed within two
months of the date of filing of the chargesheet. Section 327 provides that
inquiry and trial of the offence of rape/aggravated rape shall be conducted in
camera and as far as practicable by a woman judge or magistrate with
leeway to the presiding judge to grant access to a particular person if thought
fit by him/her or upon an application being made by any one party. Lastly,
Section 357C mandates provision of first aid or medical treatment, albeit,
free of cost to women who are inter alia victims of rape.
141.1. The aforementioned provisions are those provisions to which a
married woman victim would have no recourse. The fact that the law does
not operate even-handedly for women who are similarly circumstanced i.e.
subjected to forced sex is writ large and no amount of legal callisthenics will
sustain MRE. Therefore, in my view, MRE is bad in law as it violates
Article 14 of the Constitution.
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142. This brings me to the argument that there are other provisions in the
IPC which are relationship-centric and, therefore, MRE cannot be struck
down on the ground that it grants impunity to the offender only because he
is in a marital relationship with a woman-victim. The argument is only
partially correct and, therefore, misses the point that Mr Rao and Ms
Rebecca John had proffered in the course of the hearing.
142.1. First and foremost, what is required to be examined in this case, as
noticed above, is the legal tenability of the impugned provision in the
context of the object sought to be achieved. As discussed above, the stated
object of Section 375 amongst others is to punish offenders who are found
guilty of rape. The invidious classification that is brought about by MRE
fails to achieve this object and, therefore, is unable to offer equal protection
of the law to married women-victims who are similarly circumstanced.
Thus, when contrasted with other provisions in the IPC, which provide for
exceptions on account of the marital relationship- would show that they
firewall offences which are committed outside marriage and not offences
perpetrated by one spouse upon the other. In this context, one may advert to
Sections 136, 212, 216 and 216A of the IPC which broadly concerns
prosecution for offences for harbouring deserters, offenders, escapees and
robbers/dacoits respectively.
142.2. In all these cases, where the person who is harboured and the one who
harbours are in a spousal relationship, the law excludes such an offender
from the rigours of prosecution. The point which was made and which
emerges upon a plain reading of these provisions is that these are not
provisions where the deserter, escapee, offender or robber/dacoit commits an
offence on the harbourer with whom she or he is in a spousal relationship.
142.3. MRE, on the other hand, seeks to grant impunity to the husband i.e.,
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the offender, although, the offence is perpetrated on the wife. Therefore, the
argument that there are other provisions in the IPC that ring-fence
defendants from prosecution based on a marital relationship are in the
context of the aforesaid discussion completely misconceived.
V(iii) A married woman can take recourse to other remedies
143. The submission made that there are avenues available both in IPC and
other statutes which can be taken recourse by a woman-victim to agitate her
grievance concerning sexual violence once again fails to recognize the fact
that none of them brings within its fold the offence of rape. Section 498A of
the IPC which was cited in this context deals with an offence of "cruelty"
committed by the husband or his relatives. The definition of "cruelty"
plainly does not include the offence of rape as defined in Clauses (a) to (d)
of Section 375. The expression "cruelty" as defined in Section 498A of IPC
means wilful conduct which is of such nature that is likely to drive the
woman to commit suicide or to cause grave injury to her life, limb or health.
The expression also includes harassment of a woman where such harassment
is directed towards coercing her or any person related to her to meet any
unlawful demand concerning, property and/or valuable security. The failure
of the victim or any person related to her to meet such demand is also
construed as harassment under the said provision. Thus, the offence of rape
cannot be brought within the ambit of Section 498A of the IPC.
144. Likewise, other provisions of the IPC such as Section 304B
(concerning dowry death) and Section 306 (concerning abetment of suicide)
do not bring within its ambit the offence of rape. The presumptions provided
under Section 113A (with regard to abetment of suicide of a married
woman) and 113B (vis-à-vis dowry death) under the Evidence Act are co-
relatable to Section 498A and Section 304B of the IPC respectively. These
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provisions by themselves do not militate against the argument that they do
not further the cause of a woman-victim who wishes to agitate her grievance
concerning forced marital sex.
145. Likewise, the Statement of Objects and Reasons of the D.V. Act
would distinctly bring forth the point that it was enacted to protect women
against domestic violence. The Statement of Objects and Reasons
acknowledges that the remedies available under the "civil law" up until then
did not address the phenomena of domestic violence in its entirety. The
thrust of the D.V. Act is to protect women from becoming victims of
domestic violence and to prevent the occurrence of domestic violence in the
society. The fact that Section 498A of the IPC was available to a woman in
cases in which she was subjected to cruelty by her husband or relatives was
also noticed. The emphasis of Messrs Sai Deepak and Kapoor was on the
definition of domestic violence as provided in Clause (a) of Section 3 read
with Explanation 1(ii) of the D.V. Act. The submission was, that under
Section 18 of the said Act, a magistrate can pass protection orders and
likewise, issue a slew of directions under Section 19. In particular, it was
pointed out that under sub-section (2) of Section 19, the magistrates
routinely, issue directions for the registration of an FIR to protect or provide
safety to the aggrieved person. It was pointed out that besides this, the
magistrate also has power under Section 20 to grant monetary reliefs which,
inter alia, require the respondent to make good the loss of earnings and/or to
provide for medical expenses to the aggrieved person resulting from acts
which emanate from domestic violence.
145.1. Clearly, these arguments, hedge around the main issue, which is, to
call out the offence of rape for what it is. These arguments miss the point
that although sexual abuse is included in the definition of domestic violence,
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the offender is not tried for the offence of rape and the consequences that the
offender would have to face, as provided in Section 376(1) of the IPC if
found guilty. The fact that the magistrate under Section 19(2) of the D.V.
Act can order registration of an FIR for every other offence other than
marital rape only highlights the fact that the woman-victim is nowhere near
the point from which she can trigger prosecution of her husband who has
subjected her to forced sexual intercourse.
145.2. Similarly, the Statement of Objects and Reasons of the Dowry Act
would disclose that the said Act was enacted to prohibit the "evil practice"
of giving and taking dowry. It, in no manner protects married women
against sexual abuse.
145.3. Insofar as redressal against injury caused on account of sexual abuse
amounting to rape is concerned, the husband is not visited with any criminal
liability for raping his wife. [See HMA, SMA; The Parsi Marriage and
Divorce Act, 1936; and the Divorce Act, 1969.]
V(iv) Conjugal expectation
146. The submission that the husband has "conjugal expectation" to have
sexual communion with his wife, in my opinion, is tenable as long as the
expectation is not equated to an unfettered right to have sex without consent
of the wife. The law cannot direct consummation. The best illustration is the
decree of restitution for conjugal rights issued by the court under Section 9
of the HMA. Although a decree obtained under HMA can become the basis
for seeking a divorce, the decree can be executed only by a attachment of
property. [See Order XXI Rule 32 of CPC; and also see Saroj Rani.]
147. Conjugal expectations, though, legitimate during the subsistence of a
joyful marriage, cannot be put at par with unbridled access and/or marital
privilege claimed by the husband vis-a-vis his wife disregarding the
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circumstances which obtain at the given point in time as also her physical
and mental condition.
V(v) Non-consensual sexual intercourse is not labelled as "rape" to save
the institution of marriage.
148. The submission that the legislature has not condoned spousal sexual
violence but has only taken a conscious decision not to label it as "rape" to
protect the institution of marriage and by extension families and progeny, to
my mind, ignores the fundamental fact that marriage is a union between two
individuals [recognised by the law and the society] who may have familial
attachments. The marital bond between individuals is the edifice of the
familial structure. The expanse of the familial structure is, in turn, dependent
on whether or not individuals are part of a joint family or have chosen for
themselves a nuclear family. Thus, it is important that the edifice on which
the familial structure is erected remains intact i.e. the union between the
individuals. However, the edifice can remain intact only if it is rooted in
mutuality, partnership, agency and the ability to respect each other's
yearning for physical and mental autonomy. These, perhaps, are the core
principles which require constant nurturing through love and affection.
Undeniably when these core principles are violated that the edifice crashes
resulting in the collapse of the familial structure.
148.1. The State has no role in setting up the edifice or the familial structure.
The State via various statutory instruments recognizes the existence of the
marital bond and provides avenues for its dissolution and/or remedies where
it becomes unworkable. The HMA, SMA, D.V. Act and other legislations
are illustrations of the role assigned to the State concerning the recognition
of marriages, their dissolution and provision of remedies for aggrieved
parties which includes maintenance/custody of progeny born from wedlock.
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The State's interest is limited to the extent provided by various, such-like
statutes of such genre.
148.2. It is in this backdrop that the State has legislatively intervened from
time to time both in the sphere of criminal and civil law to provide remedies
to women who are subjected to sexual abuse. Section 375, 376, 376B and
other appurtenant provisions contained in the IPC for aggravated rape and
the D.V. Act are prime examples of the legislative intervention made by the
State in the interest of women exposed to sexual abuse and domestic
violence.
148.3. That said, the State appears to have stopped short of conferring the
right on a woman to call out an offender who happens to be her husband
when he subjects her to rape. The argument that the State has recognized
other forms of sexual offences and, therefore, to protect the familial
structure, it does not wish to go further (i.e., empower a married woman to
trigger the criminal law when her husband subjects her to rape) amounts to
giving recognition to the abominable Common Law Doctrine that a married
woman is nothing but chattel who loses her sexual agency once she enters
matrimony.
149. Certain sexual offences need to be called out for what they are. Sexual
assault by the husband on his wife which falls within the fold of Section 375
of the IPC, in my opinion, needs to be called out as rape as that is one of the
ways in which the society expresses its disapproval concerning the conduct
of the offender. Oddly, the prevailing mores in society appear to stigmatize
the victim rather than the rapist. Therefore, I agree with Ms Nundy that the
sexual assault which falls within the four corners of Section 375 of the IPC
needs to be labelled as rape irrespective of whether it occurs within or
outside the bounds of marriage. The fact that certain ingredients of the
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offence covered under Section 375 are found present in other provisions of
the IPC concerning hurt (Section 319 read with Section 321& 323), grievous
hurt (Section 320 read with Section 322& 325) or cruelty (Section 498A)
does not provide a satisfactory answer as to why a sexual assault which is
synonymous with rape should not be labelled as rape when the offence is
committed on an adult married woman by her husband.
V(vi) Lodgement of false cases
150. The other argument that striking down MRE would result in the
lodgement of false cases is based on a notion which is not backed by any
empirical data. First and foremost, what is required to be kept in mind is that
a vast number of women married or unmarried do not report sexual assaults
because of the stigma attached to it. The most authentic data which was
presented before us [and not refuted by the Union of India
(UOI)/Government of National Capital Territory of Delhi (GNCTD)] was
the National Family Health Survey (NFHS-4) carried out under the aegis of
Government of India, Ministry of Health and Family Welfare for 2015-
2016. The data placed before us disclosed that the survey appears to have
been conducted among married women (falling between the age of 15 to 49
years). The survey revealed disturbing aspects concerning spousal sexual
violence, both, from "current husbands" as well as "former husbands"; apart
from the fact that 99% of the sexual assault cases remain unreported. The
relevant part of the survey is extracted hereafter; the figures and narratives
set forth speak for themselves.
"Table 16.6 Persons committing sexual violence
Among women age[d] 15-49 who have experienced sexual violence,
[the] percentage who report specific persons committing sexual
violence according to current marital status and age at [the] first
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experience of sexual violence, India 2015-16
Marital Status Age at [the] first experience of
sexual violence
Person Ever Never <15 15 years Don't Total
married married years or higher know
Current 82.6 na 83.1 86.0 47.8 77.0
husband
Former 9.2 na 9.8 10.0 4.0 8.6
husband
151. Therefore, the apprehension expressed that there will be a deluge of
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NHFS data is taken into consideration, it establishes that 9.9 out of 10 cases
of sexual assault in India go unreported. Thus, the contention that because
there is a possibility of false cases being lodged and, therefore, the courts
should refrain from striking down MRE even if it is unconstitutional, is in
my view, a contention which is completely unmerited.
151.1. Besides the reason articulated hereinabove, this submission, if I may
say so, is suggestive of the fact that the married women in India are
manipulative or capable of being manipulated more than their counterparts
in other jurisdictions. In support of this submission, observations made in
judicial decisions concerning offences such as Section 498A of the IPC have
been cited before us. In my view, the apprehension is, firstly, exaggerated
and, as indicated above, is not backed by empirical data; the data in fact
shows that the contrary is true. Secondly, the courts in India are fully
equipped to deal with false cases. Lodgement of false cases is not confined
to rape, it permeates, to an extent, to other provisions of IPC as well. Section
498A of the IPC is a case in point. Despite, noticing oddities in certain cases
and/or false complaints being lodged the legislature has not been spurred
into removing, the provision from the statute; I presume for three reasons:
First, statistically, the number of false cases is minuscule. Second, it is a
beneficial provision which protects a married woman from atrocities that
may be inflicted on her by the husband and/or his family. Third, the Courts
have been able to deal with such cases appropriately.
151.2. Thus, this being the track record of Courts up until now, no one need
entertain doubts that the Courts would not be able to employ the same rigour
qua false allegations of marital rape. The best way forward would be to
create a sieve at every level so that false cases are weeded out.
151.3. However, if one were to accept the submission that there would be a
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deluge of false cases against husbands and use this as the basis for rejecting
the challenge laid to MRE, it would be a case of throwing the baby out with
the bathwater.
V(vii) Invasion of Private Space
152. As regards the submission that prosecution of the offending husband
for a rape offence would result in invading the private space of a married
couple- is nothing but an attempt to keep the law at bay even when a
heinous crime such as rape has occurred within what some would refer to as
"sacrosanct" space. The argument to say the least is morally suspect and
legally untenable. The reason for this is not far to see. When an offence of
sexual abuse (short of rape) takes place within the confines of a married
couple's private space, the law has unhindered access to the very same space
to bring the guilty to justice. Thus, short of rape, if an offending husband
inflicts hurt or grievous hurt or subjects her to cruelty or even sexual abuse,
the investigators are undoubtedly empowered to enter the concerned
couple's private space, which in joyful times is the preserve of a married
couple. The attempt to keep away the law even when a woman is subjected
to forced sex by her husband, by demarcating private and public space is to
deny her the agency and autonomy that the Constitution confers on her. The
distinction between private and public space has no relevance when rights of
the women victim are infringed. In this context, the following observations
in Joseph Shine being apposite are extracted hereafter :
"192. The right to privacy depends on exercise of autonomy and
agency by individuals. In situations where citizens are disabled
from exercising these essential attributes, the courts must step in
to ensure that dignity is realized in the fullest sense. Familial
structures cannot be regarded as private spaces where
constitutional rights are violated. To grant immunity in situation
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when the rights of individuals are in siege, is to obstruct the
unfolding vision of the Constitution. ....
XXX XXX XXX
"218....Constitutional protections and freedoms permeate every
aspect of a citizen's life - the delineation of private or public
spheres become irrelevant as far as the enforcement of
constitutional rights are concerned. Therefore, even the intimate
personal sphere of marital relations is not exempt from
constitutional scrutiny..."
[Emphasis is mine.]
V(viia) Gathering evidentiary material would be difficult
153. Likewise, the argument that collection/gathering of evidence would
be difficult in cases involving marital rape is, in my view, no different from
the impediments faced by an investigator concerning other offences, short of
rape, which occur in marital space.
154. Mr Sai Deepak's contention that investigation in private and intimate
space because of fear of accusation of rape would require couples to enter
into a detailed written agreement concerning courtship and/or mating or
propel the persons involved to create evidentiary record concerning every
act of intimacy or have third party witness the act, in my view, trivializes the
sexual abuse inflicted on a woman. This argument, as observed hereinabove,
stems from a pre-conceived notion that married women lack a sense of
proportion or are inherently manipulative. The argument lacks substance
because if this submission were to be accepted then the rape law ought not
to apply also to couples who are in live-in relationships. The logical sequitur
of this line of argument is that rape law should be confined to an offence
committed on a woman by a stranger alone. In my opinion, the difficulty in
collecting evidentiary material should not be the reason for keeping an
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offending husband who subjects his wife to forced sex out of the purview of
the substantive rape law.
154.1. These are the very same arguments which have been propounded by
the persons such as intervenors in support of offending husbands who
subject their wives to rape, and remain outside the purview of the rape law.
Pertinently, similar objections received the attention of the UK Law
Commission (1991) which was considered by it in its Working Paper
No.116. To establish the untenability of the objection and for the sake of
brevity, let me straight away extract some parts of the said report, as they are
not only wholesome but are also based on robust common sense.
"4.51...... We are likewise unaware of any evidence to suggest that
there would be significantly more problems of proof in relation to
rape than in relation to other crimes within marriage, though we shall
welcome further comment on that issue. However, because of the
importance of this general issue we set out in this section for comment
some further factors that seem to us to assist in assessing the matter.
4.52..... As to the first, difficulty of proof, issues of evidence and proof
in marital rape cases do not in fact appear to be different in kind from
those arising in many crimes, sexual and non-sexual, where the case
turns on the word of the accused against that of the alleged victim.
The courts are well aware of these difficulties, particularly as they
affect crimes like rape, and of their obligation to ensure that injustice
does not occur..... We suggest, therefore, that the courts would be able
to protect the interests of the accused here as in other cases involving
sexual allegations.
4.53 The converse fear is that courts would be so concerned to protect
the interests of the accused that the extension of the law of rape to
cohabiting married couples would have no practical effect. This
would not be a problem in cases where the husband used violence; or
boasted of his exploits; or otherwise created secondary evidence. But
even in cases where the only evidence was that of the wife, courts
would be capable of identifying testimony that was in fact credible
and acting on it. We point out below that despite the considerable
trauma that can attend participation in a rape trial, at least some
complainants, even in cases of rape committed by intimates in private,
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appear to be willing to come forward, and convictions are obtained.
While we recognise that a complaint by a wife might be scrutinised
with particular care both by the prosecuting authorities and by the
courts, we have seen no evidence to suggest that a law of marital rape
would be unenforceable. As the High Court of Justiciary of Scotland
put it in Stallard v H M Advocate,44
"We accept, of course, that proof of rape in marriage will, in
many situations, be difficult, but that is no reason for saying
that a charge of rape (of his wife) against a husband while the
parties are still cohabiting, is not relevant for trial."
[Emphasis is mine.]
155. Therefore, it cannot be said that the difficulties in proving rape as
against other offences within marriage are somehow greater. Moreover, one
cannot close one's eyes to the offence of rape merely because it is difficult
to prove. There cannot be a greater travesty of justice. In my view, the rules
of evidence as applicable in our country and scores of precedents of our
Courts and of Courts in other jurisdictions can easily provide guidance on
these aspects.
V(viii) New offence
156. One of the principal objections to striking down MRE is that it would
create a "new offence". In support of the submission that striking down
MRE would not create new offence, Ms Nundy, Mr Rao and Ms John, inter
alia, relied upon the judgment in Independent Thought. It was also their
submission that what the criminal law punishes is the act of commission or
omission; in this case, subjecting a woman to a forced sexual act, which is,
agnostic to who the perpetrator of the crime is. In this context, reference was
made to the provisions of the IPC and the Code which define the expression
"offence".
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157. The contention is that if MRE is struck down all that it would do is to
bring the offending husband within the fold of the substantive rape law. On
the other hand, Messrs Sai Deepak and Kapoor read passages from the
decision rendered in Independent Thought to demonstrate that the court
was only attempting to correct the anomaly which subsisted vis-à-vis a
child-bride who was subjected to forced sex by her husband. In this behalf,
both, Mr Sai Deepak as well as Mr Kapoor highlighted the fact that the
judges who rendered the decision have made it amply clear that they were
not dealing with marital rape in the context of an adult woman. This
argument was buttressed by relying upon the provisions of IPC i.e., the sixth
circumstance contained in Section 375 and the provisions of the POCSO Act
and PCM Act.
157.1. To meet this objection, Ms Nundy had relied upon the "inversion
test", as formulated by Professor Eugene Wambaugh, which is cited with
approval by the Supreme Court in Utility Users' Welfare and Nevada
Properties (P) Ltd.
158. In my view, the submission that if one were to strike down MRE, it
would create a new offence, is misconceived for the following reasons :
(i) Firstly, the offence of rape is already defined in the substantive part of
Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d)
of Section 375 constitute rape if they fall within any of the seven
circumstances alluded to in the said provision. There are two exceptions
provided in Section 375 and, thus, those who come within the ambit of the
exception cannot be prosecuted for the offence of rape. The first exception
concerns a circumstance where the woman undergoes a medical procedure
or intervention. The second exception (which is the exception under
challenge) concerns the act of sexual intercourse or sexual acts which
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involve a man and his wife who is not under 18 years of age. The exception
clearly subsumes the main provision without providing a determining
principle or rationale as to why husbands who have subjected their wives to
forced sex should not face the full force of the rape law. Since the stated
objective of the rape law is to protect women from sexual abuse of the worst
kind i.e., rape, there is no perceivable rationale for granting impunity to an
offending husband in the context of marital rape. Thus, if MRE is excised,
all that would happen is, it would extend the ambit of Section 375 to even
offending husbands.
(ii) Secondly, a new offence/new crime would perhaps have been created
if the ingredients of the offence had changed. [See People v. Liberta.] It is
no one's case that the ingredients of the offence have changed; all that
would happen if MRE is struck down is that the offending husband would
fall within the ambit of the offence.
(iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising
parts of an offending provision contained in a statute is a legitimate judicial
tool employed by courts for severing what is unconstitutional and retaining
that which is construed as lawful. [See C.B. Gautam v. Union of India
(1993) 1 SCC 7845; Navtej Singh Johar; and Harsora v. Harsora.]
(iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ring-
fence the offender based on his marital relationship with the accused. The
main provision is neutral to the relationship that may or may not subsist
between the offender and the victim. Thus, a person who is a stranger or is
in a live-in relationship with the victim can be prosecuted for the offence of
rape. As a matter of fact, the legislature pursuant to the Criminal
(Amendment) Act, 2013 has brought within the sway of rape law (Section
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375) even separated husbands by inserting Section 376B in Chapter XVI of
the IPC; a provision which is challenged by the petitioners on different
grounds.
(v) Fifthly, what is principally punished under the criminal law is the act
of omission or commission, as etched out in the IPC. Section 40 of the IPC
which defines an "offence", inter alia, provides :
"Except in the Chapters and sections mentioned in clauses 2 and 3
of this section, the word "offence" denotes a thing made punishable
by this Code.
In Chapter IV,.....the word "offence" denotes a thing punishable
under this Code, or under any special or local law as hereinafter
defined.
And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word
"offence" has the same meaning when the thing punishable under
the special or local law is punishable under such law with
imprisonment for a term of six months or upwards, whether with or
without fine."
[Emphasis is mine.]
(va) Likewise, the expression "offence" is also defined in Section 2(n) of
the Code which reads as follows :
"2(n) "offence" means any act or omission made punishable by
any law for the time being in force and includes any act in respect
of which a complaint may be made under section 20 of the Cattle-
tresspass Act, 1871 (1 of 1871)."
[Emphasis is mine.]
(vb) Besides this, the Code also defines the expression "victim" in Section
2(w)(a) which reads as follows :
"2(wa). "Victim" means a person who has suffered any loss or
injury caused by reason of the act or omission for which the
accused person has been charged and the expression "victim"
includes his or her guardian or legal heir."
[Emphasis is mine.]
(vc) The aforesaid definitions of the expression "offence" and "victim"
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would show that an act or an omission to commit an act is treated as an
offence only if it is made punishable by any law whether it be the IPC or any
special or local law. In other words, acts which produce or are likely to
produce harmful effects as contemplated under the penal law are punishable.
In the same way, omissions which produce or are likely to produce a similar
harmful effect that the law seeks to plug are punished likewise. That being
said, there are certain omissions that the law does not punish as is evident
from the scheme of IPC.
(vd) Therefore, the penal law is act/omission centric and, in most
situations, is neutral to who the perpetrator of the crime is. The fact that in
certain cases (which includes provisions that find a place in IPC or special
statutes such as Juvenile Justice Act, 2015) relationship enters the fray does
not dilute the fundamental premise on which penal laws are pivoted, which
is, that they punish the act committed (or its omission); which is made
punishable, irrespective of the relationship between the offender and the
victim. As noticed above; for example, qua the offence of harbouring a
deserter, an offender, an escapee or a robber or a dacoit, the IPC, excludes
the spouse from the rigour of prosecution. [See Sections 136, 212, 216 &
216A.] These provisions and the like would not sustain the argument that
MRE should remain on the statute as, firstly, the dissonance that MRE
creates by excluding a particular set of offenders from the ambit of the main
provision is not found in such examples. Secondly, these are provisions
which do not concern the perpetration of sexual violence by one spouse on
the other, i.e. the husband on his wife.
159. The submission made by Mr Sai Deepak that the judgments cited on
behalf of the petitioners i.e., Shreya Singhal and Navtej Singh Johar would
have no applicability as they relate to a constitutional challenge to a
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criminalizing provision i.e., Section 66A of the IT Act and Section 377 of
the IPC respectively is unsound as it fails to recognize the fact that MRE is
constitutionally suspect because it suffers from "under inclusivity" and fails
to furnish a "determining principle" as to why offending husbands should be
left out from the rigour of rape law.
159.1. The judgment of the House of Lords in R. v. R. made a particularly
significant observation in this context (i.e., creation of new offence) while
dealing with the expression "unlawful sexual intercourse" found in the UK
Sexual Offences (Amendment) Act, 1976. The court was called upon to
ascertain whether the word "unlawful" which preceded the expression
"sexual intercourse" was a mere surplusage and not implying, outside
marriage. The House of Lords ruled that the word "unlawful" was redundant
since it was, even otherwise, unlawful to have sexual intercourse with any
woman (married or unmarried) without her consent :
"The fact is that it is clearly unlawful to have sexual
intercourse with any woman without her consent, and that the use
of the word in the subsection adds nothing. In my opinion there
are no rational grounds for putting the suggested gloss on the
word, and it should be treated as being mere surplusage in this
enactment, as it clearly fell to be in those referred to by Donovan
J. That was the view taken of it by this House in McMonagle v.
Westminster City Council (1990) 1 All ER 993, (1990) 2 AC 716
in relation to paragraph 3A of Schedule 3 to the Local
Government (Miscellaneous Provisions) Act 1983.
I am therefore of the opinion that Section 1(1) of the Act of
1976 presents no obstacle to this House declaring that in modern
times the supposed marital exemption in rape forms no part of the
law of England. The Court of Appeal (Criminal Division) took a
similar view. Towards the end of the judgment of that court Lord
Lane CJ said [(1991) 2 All ER 257 at 266, (1991) 2 WLR 1065 at
1074] :
'The remaining and no less difficult question is whether,
despite that view, this is an area where the court should
step aside to leave the matter to the parliamentary process.
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This is not the creation of a new offence, it is the removal of
a common law fiction which has become anachronistic and
offensive and we consider that it is our duty having reached
that conclusion to act upon it.'"
[Emphasis is mine.]
159.2. The argument that the House of Lords in R. v. R. was dealing with a
provision which was not akin to the MRE, although, literally correct,
disregards the reasoning furnished by the Law Lords in concluding that the
expression unlawful was a surplusage. The defendant's plea that a husband
cannot be held guilty of raping his wife was based on the Common Law
Doctrine of implied consent given by the wife once she entered matrimony.
This defence was rejected by the trial court as well as the Court of Appeal
(Criminal Division) and, ultimately, found resonance with the House of
Lords. The ratio of the judgment in R. v. R. is squarely applicable, to my
mind, to the issue at hand, both for the proposition that striking down MRE
does not create a new offence and that if such a step is taken, the court need
not leave the matter to the legislature.
160. Thus, for the reasons given above, I am not persuaded to hold that
striking down MRE would result in the creation of a new offence.
161. Although, as noticed above, the petitioners relied upon the decision
rendered in Independent Thought which, in turn, noticed the decision in R.
v. R., I have consciously not gone down that path because of the
observations made by the learned judges that their rulings would not apply
to MRE concerning an adult-woman. That said, it is important to observe
that, even though the binding effect of the judgment rendered in
Independent Thought may have been diluted, the observations made therein
would surely have persuasive value. [See Periyar & Pareekanni Rubbers
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Ltd. v. State of Kerala, (2016) 1 SCC 294, paragraph 3446.]
161.1. As adverted to hereinabove, the court in Independent Thought was
also dealing with Exception 2 appended to Section 375 of the IPC, albeit,
that part which concerned a child bride. The court after examining the
provisions of the IPC and appurtenant statutes, read down Exception 2 and,
in effect, declared that it would not apply if the sexual intercourse or sexual
act was committed by a man with his wife, who was under 18 years of age.
Thus, the age threshold concerning the girl-child was brought in line with
the sixth circumstance outlined in the main part of Section 375. The age
threshold provided in Exception 2 for the wife stands enhanced from "under
fifteen years of age" to "under eighteen years of age"; to that extent, the
impunity granted to the offending husband stands diluted. Therefore, as per
the present state of law, if a husband has forced sex with his wife, who is
under 18 years of age, he is liable to be prosecuted for rape as the principle
of implied consent would not apply in his case.
161.2. That said, the logic, rationale and reasoning provided by the Supreme
Court in Independent Thought while reaching this conclusion surely, has
immense weight which cannot be brushed aside. [See paragraphs 190-193 at
pages 884-885 of Independent Thought-If the Court were to read down
Exception 2 to Section 375, it would not create a new offence.]
VI MRE violates Article 21 of the Constitution
162. Apart from the fact that MRE, in my view, falls foul of the equality
clause of the Constitution, it also violates Article 21 of the Constitution. The
reason being that the offence of rape and injury caused remains the same
irrespective of who the offender is. The fact that the rapist is the husband of
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the victim does not make the act of sexual assault any less injurious,
degrading or dehumanizing. Irrespective of who the perpetrator is, forced
sex mars the woman-victim physically, psychologically and emotionally.
Rape, as an offence, deserves societal disapprobation in the strongest terms,
notwithstanding, the fact that the rapist is in a marital relationship with the
victim.
163. Modern-day marriage is a relationship of equals. The woman by
entering into matrimony does not subjugate or subordinate herself to her
spouse or give irrevocable consent to sexual intercourse in all circumstances.
Consensual sex is at the heart of a healthy and joyful marital relationship.
Non-consensual sex in marriage is an antithesis of what matrimony stands
for in modern times i.e., the relationship of equals. The right to withdraw
consent at any given point in time forms the core of the woman's right to life
and liberty which encompasses her right to protect her physical and mental
being. Non-consensual sex destroys this core by violating what is dear to
her, which is, her dignity, bodily integrity, autonomy and agency and the
choice to procreate or even not to procreate. While marital rape leaves
physical scars, it inflicts much deeper scars on the psyche of the victim
which remain with her years after the offence has occurred.
164. What makes the continuance of MRE on the statute egregiously
problematic is, while it emasculates the woman's right to trigger prosecution
against her husband for non-consensual sex, women, who are sex workers or
are separated from their husbands, are invested with this right. Besides this,
MRE makes no allowance for the circumstances in which a wife may say
"no" to sex. For example, a wife may refuse to engage in sexual activity
with her husband when she is ill or is menstruating or is unable to engage in
sexual activity because of a sick child. The wife may also want to keep away
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from sexual activity in a situation where the husband has contracted an
infectious, sexually transmissible disease, such as HIV; her refusal in such a
situation may emanate not only on account of concern for herself but also, to
protect the progeny which may result from such communion. These are
aspects which only exacerbate the lack of autonomy and sexual agency
which stands embedded in MRE.
165. Even in the 19th century when the Common Law Doctrine was in play
(i.e., that a husband could not be held criminally liable for raping his wife),
difficulty was experienced in applying the doctrine, which was noticed in R.
v. Clarence, (1886-1890) All ER Rep 133 : (1888) 22 Q.B.D 23.
165.1. This was a case where the husband was accused of having sexual
intercourse with his wife at a time when, to his knowledge, he was suffering
from gonorrhoea. It was found that the wife was ignorant of this fact. The
argument was, had she known, she would have not consented to the sexual
communion. In this backdrop, the court was called upon to consider whether
the husband's conviction could be sustained under Section 20 and/or 47 of
the Offences Against the Person Act, 1861. Section 20 was concerned with
unlawfully and maliciously inflicting grievous bodily harm while Section
47, concerned the offence of assault, occasioning actual bodily harm. In this
background, one of the arguments the court was required to consider was
whether the wife's implied consent to intercourse stood revoked.
165.2. This case was heard by 13 judges out of which four rendered a
dissenting opinion and, hence, sustained the conviction. The dissenting
opinion of Hawkins, J. brings to fore the discomfort that the judges holding
minority view experienced with the plurality opinion, which ruled against
convicting the offending husband. Hawkins, J. opined rather felicitously that
if the law was, as understood by the majority, he did not wish to be party to
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such a judgment which would proclaim to the world that the law in England
is that even though the husband deliberately and knowingly perpetrated such
abominable outrage on his wife and yet he could not be punished for such
"atrocious barbarity". The following observations being significant, in my
view, need to be appreciated in the context of the present day MRE found in
the IPC:
".... I proceed now to consider the question whether there was, in
fact, an assault by the prisoner on his wife occasioning her either
grievous or actual bodily harm. I answer this question, also, in
the affirmative. By the marriage contract a wife no doubt confers
upon her husband an irrevocable privilege to have sexual
intercourse with her during such time as the ordinary relations
created by such contract subsist between them. For this reason it
is that a husband cannot be convicted of a rape committed by him
upon the person of his wife. But this marital privilege does not
justify a husband in endangering his wife's health and causing her
grievous bodily harm, by exercising his marital privilege when he
is suffering from venereal disorder of such a character that the
natural consequence of such communion will be to communicate
the disease to her. Lord Stowell in Popkin v. Popkin (16) said (1
Hag. Ecc. At p. 767, n.):
"The husband has a right to the person of his wife, but not if her
health is endangered."
So to endanger her health and cause her to suffer from loathsome
disease contracted through his own infidelity, cannot, by the most
liberal construction of his matrimonial privilege, be said to fall
within it; and although I can cite no direct authority upon the
subject, I cannot conceive it possible seriously to doubt that a wife
would be justified in resisting by all means in her power, nay,
even to the death, if necessary, the sexual embraces of a husband
suffering from such contagious disorder. In my judgment wilfully
to place his diseased person in contact with hers without her
express consent amounts to an assault.
It has been argued that to hold this would be to hold that a man
who suffering from gonorrhoea has communion with his wife
might be guilty of the crime of rape. I do not think this would be
so. Rape consists in a man having sexual intercourse with a
woman without her consent, and the marital privilege being
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equivalent to consent given once for all at the time of marriage, it
follows that the mere act of sexual communion is lawful ; but
there is a wide difference between a simple act of communion
which is lawful, and an act of communion combined with
infectious contagion endangering health and causing harm,
which is unlawful. It may be said that assuming a man to be
diseased, still as he cannot have communion with his wife without
contact, the communication of the disease is the result of a lawful
act, and, therefore, cannot be criminal. My reply to this argument
is that if a person having a privilege of which he may avail
himself or not at his will and pleasure, cannot exercise it without
at the same time doing something not included in this privilege
and which is unlawful and dangerous to another, he must either
forego his privilege or take the consequences of his unlawful
conduct. ....
....Another argument used for the prisoner was that such cases as
the present were not contemplated by the statute under which he
was indicted; and it was also said that if it had been intended that
the communication of a venereal disease to a woman during an
act of sexual intercourse consented to by her should be
punishable as a crime, some special enactment to that effect
would have been introduced into one or other of the Acts of
Parliament relating to women and offences against them. This is
an argument to which I attach no weight, assuming the facts bring
the case within the fair interpretation of the sections to which I
have referred. ....
.....I think the legislature contemplated the punishment
of all grievous bodily harm, however caused, if caused unlawfully
and maliciously; and I cannot bring my mind for an instant to
believe that, even had the circumstances before us been present to
the minds of the framers of the Act, they would have excluded
from its operation an offence as cruel and as contrary to the
obligation a man owes to his wife to protect her from harm, as
can well be conceived. ....
.... Fortified in my opinion, as I believe myself to be, by the plain
words of the statute and by the authority of Willes, J., one of the
greatest and most accurate lawyers of modern times, I have
arrived at the conclusion that this conviction is right and in
accordance with the law, and I cannot, therefore, be a party to a
judgment which in effect would proclaim to the world that by the
law of England in this year 1888 a man may deliberately,
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knowingly, and maliciously perpetrate upon the body of his wife
the abominable outrage charged against the prisoner, and yet not
be punishable criminally for such atrocious barbarity. ...."
[Emphasis is mine.]
165.3. Coincidentally, around the same time i.e., in and about July 1890, a
similar view was expressed in India by the Calcutta High Court in Queen-
Empress v. Hurree Mohun Mythee (1891) ILR 18 Cal 49. In a nutshell, the
view was that the husband's absolute right to marital privilege had to be
hemmed in bearing in mind the wife's health and safety :
"5. Now, gentlemen, I must begin by asking you carefully to
distinguish a certain branch of the law which has no connection with
this case from other branches of the law which may have a connection
with it. The branch of the law which has no connection with this case
is the law of rape. It is probably within the knowledge of you all,
gentlemen, that the crime of rape consists in having sexual
intercourse with a female either without her consent, or when she is of
such an age that she cannot in law consent, and that the crime
consists in the fact of intercourse independently of circumstances, of
intention, of knowledge, and of consequences. And, in the case of
married females, as you probably know, the law of rape does not
apply as between husband and wife after the age of ten years. But it
by no means follows that because the law of rape does not apply as
between husband and wife, if the wife has attained the age of ten
years, that the law regards a wife over ten years of age as a thing
made over to be the absolute property of her husband, or as a person
outside the protection of the criminal law. That of course cannot be
supposed. Under no system of law with which Courts have had to do
in this country, whether Hindu or Mahomedan, or that framed under
British rule, has it ever been the law that a husband has the absolute
right to enjoy the person of his wife without regard to the question of
safety to her as for instance, if the circumstances be such that it is
certain death to her, or that it is probably dangerous to her life. The
law, it is true, is exceedingly jealous of any interference in matters
marital, and very unwilling to trespass inside the chamber where
husband and wife live together, and never does so except in cases of
absolute necessity. But, as I have said, the criminal law is applicable
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between husband and wife wherever the facts are such as to bring the
case within the terms of the Penal Code. I am not aware that there
has occurred any case in this country in recent years in which such a
matter has come under the consideration of a Criminal Court; but in
earlier times there are recorded instances in the reports of the Sudder
Nizamat, in which husbands have been criminally punished for having
sexual intercourse with their wives with fatal results, in consequence
of their wives being unfit by reason of immaturity for such
intercourse, even in cases which did not fall within the law of rape.
But at present we are guided simply by the Penal Code, and we have
to see what provisions of the Penal Code are or may be applicable to
the facts of this case."
[Emphasis is mine.]
165.4. Pertinently, this troubling aspect of uninhibited marital privilege,
without regard to the health and safety of the victim, was noticed by the
House of Lords in R. v. R. [See (1991) 4 All ER 481, 485.]
VII MRE violates Articles 15 and 19(1)(a) of the Constitution
166. Although, Article 15 of the Constitution prohibits the State from
discriminating against any citizen inter alia on the ground of sex, the instant
matters allude to discrimination made within the same sex, solely on the
ground of their marital status. Continuance of MRE on the statute violates,
in my opinion, Article 15 of the Constitution since it triggers discrimination
against women based on their marital status. Resultantly, it impairs and
nullifies their sexual agency with regard to coitus and their right to procreate
or abstain from procreation. More fundamentally, their power to negotiate
contraception, to protect themselves against sexually transmissible disease
and to seek an environment of safety, away from the clutches of her abuses,
is completely eroded.
166.1. Likewise, MRE, in my view, is also violative of Article 19(1)(a) of
the Constitution, as it violates the guarantee given by the Constitution
concerning freedom of expression, amongst others, to married women who
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are citizens of this country. The guarantee of freedom of expression includes
a woman's right to assert her sexual agency and autonomy. The fact that this
right is also secured by Article 21 (which is available to non-citizens as
well) lends strength to the right conferred on a married woman to express
herself and not be subjected to non-consensual sexual intercourse by her
husband.
VIII Separated husbands
167. Having examined the flaws in MRE, what needs to be dealt with is
whether Section 376B read with Section 198B of the Code should also fall
by the wayside. Since I have concluded that granting impunity to offending
husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of
the Constitution, the class which comprises separated husbands would also
necessarily have to be dealt with as any other rapist. In other words,
separated husbands would suffer the same punishment, as prescribed for any
other rapist under Section 376(1) of the IPC, as that would be the logical
sequitur of striking down MRE. As noticed above, under this provision, the
minimum mandatory sentence is 10 years whereas under Section 376B, for a
separated husband, the minimum mandatory sentence is 2 years which may
extend to 7 years. In both cases, in addition to imprisonment, the concerned
court is also empowered to impose a fine. Furthermore, under Section 198B
of the Code, no court can take cognizance of an offence punishable under
Section 376B of the IPC (i.e., against a separated husband) except upon
prima facie satisfaction of the facts which constitute the offence upon a
complaint having been lodged by the wife against her husband. Thus,
Section 376B of IPC and Section 198B of the Code which advert to the third
category (i.e., separated husbands) provide not only a different procedure for
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triggering the offence but also mandates a lower minimum sentence without
being able to demonstrate how a rapist who falls in this category is different
from a husband who is not separated or even a person who is a stranger to
the victim. The provision, to my mind, is incongruous as, at the risk of
repetition, I need to emphasise that a rapist remains a rapist irrespective of
his relationship with the victim. The strenuous argument advanced on behalf
of the intervenors that quality of relationship matters, provides no
amelioration for the woman who is violently violated.
168. In the course of the hearing, one of the issues which arose for
consideration concerned the punishment provided for aggravated rape, in the
context of offending husbands. In particular, reference in this behalf was
made to the expression "relative" mentioned in Section 376(2)(f) of the IPC.
It was contended that if MRE was struck down, then, the husbands could
also be held guilty of aggravated rape as they would fall within the meaning
of the word "relative". To appreciate this argument, the relevant provision
needs to be looked at closely :
"376. Punishment of rape.-
(2)(f) being a relative, guardian or teacher of, or a person in a
position of trust or authority towards the woman, commits rape
on such woman."
168.1. A close perusal of the provision would show that while the preceding
clauses (a) to (e) of sub-section (2)(f), deal with a situation where the victim
is confined to a physical space which is under the physical or constructive
control of the offender, succeeding clauses [i.e., clauses (g) to (n)] of the
very same sub-section relate to women placed in vulnerable circumstances.
Clause (f) of sub-section (2) of Section 376 seeks to bring those offenders
within the rape law, who are in a position of trust or have authority over the
woman-victim. The persons specifically identified in this behalf, in clause
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(f) of sub-section (2) of Section 376 [without confining it to them], are a
relative, guardian or teacher. Although the ordinary meaning of the word
"relative" would be a member of the family, whether related by blood or not
or even a distant or close relative, the expression "relative" has not been
defined either in IPC or in the Code, which does create an element of
ambiguity.
168.2. Therefore, looking at the provision, holistically, in the context and
setting in which the expression "relative" is mentioned, the legislature
intended to include, in my opinion, only those relatives, who are in a
position of trust or authority such as a guardian or a teacher. It appears that
the legislature intended to bring within the fold of clause (f) of sub-section
(2) of Section 376 offenders, who, to begin with, had a platonic relationship
with the victim. In other words, the offender's close bond with the victim, to
begin with, was not suffused with sexual or romantic overtones.
168.3. Thus, when the expression "relative" is read contextually, the
offending husband, in my view, would not fall within the ambit of the said
expression and, therefore, the apprehension that the burden of proof would
shift because of the presumption of lack of consent (as provided in Section
114A of the Evidence Act) would not arise in such cases. The principle of
noscitur a sociis would apply to clause (f) to sub-section (2) of Section 376
of IPC insofar as the expression "relative" is concerned.
168.4. The other argument advanced insofar as clause (h) and (n) of sub-
section (2) of Section 376 are concerned, that they would lead to harsher
punishment as compared to husbands who are separated and covered under
Section 376B and, therefore, MRE should not be struck down, in my
opinion, is misconceived. Section 376(2)(h) and Section 376(2)(n) concern
gross cases and, therefore, fall in the category of aggravated rape. Section
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376(2)(h) concerns rape of a woman, who is known to be pregnant while
Section 376(2)(n) pertains to subjecting the same woman to repeated rape.
In view of the conclusion arrived at by me that Section 376B deserves to be
struck down, this submission can have no merit. These are acts which
deserve the same punishment, as prescribed by the legislature, irrespective
of who the offender is.
IX Presumption of Constitutionality of Pre-Constitutional Statutes
169. I must indicate that a substantial part of the arguments, on both sides,
was directed to the issue concerning the presumption of constitutionality in
respect of a pre-constitutional statute such as IPC. Ms Nundy had relied
upon the observations made in Navtej Singh Johar (see paragraphs 359 to
362) and Joseph Shine (see paragraph 270) to buttress her argument that no
such presumption applied to pre-constitutional statutes.
170. Mr Sai Deepak, on the other hand, has contended that the judgment in
Navtej Singh Johar is per incuriam. The reasons why he says so have been
recorded hereinabove by me in sub-para (xix) of paragraph 9.1.
171. Suffice it to say that it is not open for this court to declare a judgment
of the Supreme Court which is binding under Article 141 of the Constitution
[not only on this court but all courts within the territory of India] as per
incuriam. [See South Central Railway Employees Cooperative Credit
Society Employees Union v. B. Yashodabai and Others (2015) 2 SCC
72747.]
47
14. We are of the view that it was not open to the High Court to hold that the judgment delivered by this
Court in South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop.
Societies [South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop.
Societies, (1998) 2 SCC 580 : 1998 SCC (L&S) 703] was per incuriam.
15. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this
country because in that case there would be no finality to any order passed by this Court. When a higher
court has rendered a particular decision, the said decision must be followed by a subordinate or lower court
unless it is distinguished or overruled or set aside. The High Court had considered several provisions
which, in its opinion, had not been considered or argued before this Court when CA No. 4343 of 1988 was
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171.1. Furthermore, the following judgment of the Supreme Court has gone
on to hold that even obiter dicta is binding : Municipal Committee,
Amritsar vs. Hazara Singh, (1975) 1 SCC 79448. Although, on this aspect,
there is a contrarian view expressed by the Supreme Court in the matter of
Periyar & Pareekanni Rubbers Ltd.49.
172. Having said so, I have, in reaching my conclusion, presumed (for the
sake of argument) that the impugned provisions are constitutional. However,
after closely examining the arguments put forth by both sides, I have
reached (as discussed above) a definitive conclusion that the impugned
provisions are violative of Articles 14, 15, 19(1)(a) and 21 of the
Societies, (1998) 2 SCC 580 : 1998 SCC (L&S) 703] . If the litigants or lawyers are permitted to argue that
something what was correct, but was not argued earlier before the higher court and on that ground if the
courts below are permitted to take a different view in a matter, possibly the entire law in relation to the
precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done. Moreover,
by not following the law laid down by this Court, the High Court or the subordinate courts would also be
violating the provisions of Article 141 of the Constitution of India.
48
4. ........"Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the
country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that
Court even if it be only by the way has to be respected. But all that does not mean that every statement
contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than
law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has
pointed out in Gurcharan Singh v. State of Punjab [1972 FAC 549] and Prakash Chandra Pathak v. State
of Uttar Pradesh [AIR 1960 SC 195 : 1960 Cri LJ 283] that as on facts no two cases could be similar, its
own decisions which were essentially on questions of fact could not be relied upon as precedents for
decision of other cases.
49
34. In Director of Settlements v. M.R. Apparao [(2002) 4 SCC 638] , this Court extensively elaborated
upon the principle of binding precedent. The relevant para 7 is reproduced hereunder : (SCC pp. 650-51)
"7. ... Article 141 of the Constitution unequivocally indicates that the law declared by the
Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article
empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to
interpret a legislation. The statements of the Court on matters other than law like facts may have no
binding force as the facts of two cases may not be similar. But what is binding is the ratio of the
decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a
whole, in the light of the questions before the court that forms the ratio and not any particular word or
sentence. To determine whether a decision has 'declared law' it cannot be said to be a law when a
point is disposed of on concession and what is binding is the principle underlying a decision. A
judgment of the Court has to be read in the context of questions which arose for consideration in the
case in which the judgment was delivered. An 'obiter dictum' as distinguished from a ratio decidendi
is an observation by the Court on a legal question suggested in a case before it but not arising in such
manner as to require a decision. Such an obiter may not have a binding precedent as the observation
was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect
as a precedent, but it cannot be denied that it is of considerable weight."
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Constitution. Besides this, it must be borne in mind that although a pre-
constitutional law like IPC is saved by the provisions of Article 372 of the
Constitution, they are, inter alia, open to challenge under the relevant
provisions of the Constitution, such as in this case, under Articles 14, 15,
19(1)(a) and 21.
172.1. Thus, while examining the validity of such a legislation, one is
required to keep in mind the changes that have been brought about in the
society and the alteration that has been brought about over time, both, in the
world view as well as in the view held by the domestic constituents.
172.2. The case in point is the judgment rendered by the Supreme Court in
Anuj Garg. In this case, the Court was called to rule on the vires of Section
30 of the Punjab Excise Act, 1914, which prohibited employment of any
man under the age of 25 years and any woman in any part of such premises
in which liquor or intoxicating drugs were consumed by the public.
172.3. The Court, while ruling upon the issue, inter alia made the following
apposite observations :
"8. ......
"28. ... The constitutionality of a provision, it is trite, will have to be
judged keeping in view the interpretative changes of the statute
affected by passage of time."
Referring to the changing legal scenario and having regard to the
Declaration on the Right to Development adopted by the World
Conference on Human Rights as also Article 18 of the United Nations
Covenant on Civil and Political Rights, 1966, it was held : (John
Vallamattom case [(2003) 6 SCC 611] , SCC p. 625, para 33)
"33. It is trite that having regard to Article 13(1) of the Constitution,
the constitutionality of the impugned legislation is required to be
considered on the basis of laws existing on 26-1-1950, but while
doing so the court is not precluded from taking into consideration the
subsequent events which have taken place thereafter. It is further trite
that the law although may be constitutional when enacted but with
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passage of time the same may be held to be unconstitutional in view of
the changed situation.
9. Changed social psyche and expectations are important factors to be
considered in the upkeep of law. Decision on relevance will be more
often a function of time we are operating in. Primacy to such
transformation in constitutional rights analysis would not be out of
place...."
[Emphasis is mine.]
X Reliance on Decisions of Foreign Courts & International
Covenants & Conventions
173. This brings me to the objections raised by MWT and Mr Kapoor with
regard to the reliance placed by the petitioners on decisions of foreign courts
and international covenants such as CEDAW.
174. While an attempt has been made to distinguish the foreign judgments
cited by Mr Gonsalves, Ms Nundy and the two amicus curiae i.e., Mr Rao
and Ms John on the ground that the jurisdictions in which the judgments
were rendered did not have a provision akin to Exception 2 to Section 375,
the fact remains that each of these judgments except FWLD(Nepal),
concerned sexual assault by a husband or ex-husband on his wife, albeit, in
different settings :
175. As indicated above, except for the judgment rendered by the Supreme
Court of Nepal in FWLD(Nepal), which was a public interest petition, all
other cases concerned women who had been raped by their husbands.
Therefore, let me just briefly advert to them, to the extent they are relevant
to the issue at hand.
176. The judgment rendered by the ECHR in CR v. UK was in a way
examining, albeit, at the behest of the convicted husband, another facet of
the judgment rendered by the House of Lords in R v. R. The convicted
husband having lost right up to the House of Lords filed an application
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under Article 7 of the European Convention on Human Rights [in short
"Convention"], which, inter alia, stated that no one could be held guilty of a
criminal offence on account of any act or omission, which did not constitute
a criminal offence, under the national law or international law at the time
when it was committed.
176.1. Therefore, the husband's argument before ECHR was, as the
provisions of the Section 1(1)(a) of the Sexual Offences (Amendment) Act,
1976 had been interpreted to his prejudice for the first time by the Courts of
England, he could not be convicted for the offence of rape. The argument
being, having regard to the provisions of Article 7 of the Convention, the
ECHR should not consider his conduct in relation to any of the exceptions of
the immunity rule. The ECHR applied the foreseeability test in rejecting the
husband's application. According to ECHR, the husband should have
reasonably foreseen that over a period of time the law had dismantled the
immunity which was available at one point of time, against the charge of
martial rape :
"41. The decisions of the Court of Appeal and then the House of
Lords did no more than continue a perceptible line of case-law
development dismantling the immunity of a husband from prosecution
for rape upon his wife (for a description of this development, see
paragraphs 14 and 20-25 above). There was no doubt under the law
as it stood on 12 November 1989 that a husband who forcibly had
sexual intercourse with his wife could, in various circumstances, be
found guilty of rape. Moreover, there was an evident evolution, which
was consistent with the very essence of the offence, of the criminal
law through judicial interpretation towards treating such conduct
generally as within the scope of the offence of rape. This evolution
had reached a stage where judicial recognition of the absence of
immunity had become a reasonably foreseeable development of the
law (see paragraph 34 above).
42. The essentially debasing character of rape is so manifest that the
result of the decisions of the Court of Appeal and the House of Lords -
that the applicant could be convicted of attempted rape, irrespective
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of his relationship with the victim - cannot be said to be at variance
with the object and purpose of Article 7 (art. 7) of the Convention,
namely to ensure that no one should be subjected to arbitrary
prosecution, conviction or punishment (see paragraph 32 above).
What is more, the abandonment of the unacceptable idea of a husband
being immune against prosecution for rape of his wife was in
conformity not only with a civilised concept of marriage but also, and
above all, with the fundamental objectives of the Convention, the very
essence of which is respect for human dignity and human freedom."
177. In People v. Liberta, the defendant- husband had raped his wife, while
the temporary protection order passed by the Court was in operation. Under
the provisions of the Statute in force, at the relevant time, in the State of
New York, a husband could be held guilty only if the spouses were living
apart. In other words, in such a situation, they were deemed under the statute
as not being married.
177.1. The defendant's husband, however, took the position that the
temporary protection order in law and on facts, did not constitute living
apart and hence he could not be convicted of rape. Therefore the argument
was that since he remained married to his wife at the time rape was alleged
to have occurred, he came within the ambit of MRE, both vis-à-vis the
charge of rape and sodomy.
177.2. Besides this, the argument was that the subject penal law was gender-
based and under inclusive, and, therefore, was "constitutionally defective".
177.3. On facts, the Court returned a finding that because of the prohibition
in the temporary protection order the couple were in law living apart and,
therefore, were not married.
177.4. The Court also came to the conclusion that the subject penal law was
constitutionally invalid on account of under inclusion and because it was not
gender-neutral. Interestingly, the Court grappled with the issue as to whether
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it should declare the entire statute a nullity or instead, just sever the
exemption. In reaching this conclusion, the Court made the following
observations :
".... While the marital exemption is subject to an equal protection
challenge, because it classifies unmarried men differently than
married men, the equal protection clause does not prohibit a State
from making classifications, provided the statute does not arbitrarily
burden a particular group of individuals....Where a statute draws a
distinction based upon marital status, the classification must be
reasonable and must be based upon "some ground of difference that
rationally explains the different treatment"...
xxx xxx xxx
We find that there is no rational basis for distinguishing between
marital rape and nonmarital rape. The various rationales which have
been asserted in defense of the exemption are either based upon
archaic notions about the consent and property rights incident to
marriage or are simply unable to withstand even the slightest
scrutiny. We therefore declare the marital exemption for rape in the
New York statute to be unconstitutional.
xxx xxx xxx
Having found that the statutes for rape in the first degree and sodomy
in the first degree are unconstitutionally underinclusive, the
remaining issue is the appropriate remedy for these equal protection
violations. When a statute is constitutionally defective because of
underinclusion, a court may either strike the statute, and thus make it
applicable to nobody, or extend the coverage of the statute to those
formerly excluded...Accordingly, the unconstitutionality of one part of
a criminal statute does not necessarily render the entire statute void..
This court's task is to discern what course the Legislature
would have chosen to follow if it had foreseen our conclusions as to
underinclusiveness... As Judge Cardozo wrote over 50 years ago,
"'The question is in every case whether the Legislature, if partial
invalidity had been foreseen, would have wished the statute to be
enforced with the invalid part exscinded, or rejected altogether'"
["'[unless] it is evident that the legislature would not have enacted
those provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left is fully
operative as a law'"]). These principles of severance apply as well
where elimination of an invalid exemption will impose burdens on
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those not formerly burdened by the statute..., and where the
exemption is part of a criminal statute..
The question then is whether the Legislature would prefer to
have statutes which cover forcible rape and sodomy, with no
exemption for married men who rape or sodomize their wives and no
exception made for females who rape males, or instead to have no
statutes proscribing forcible rape and sodomy. In any case where a
court must decide whether to sever an exemption or instead declare
an entire statute a nullity it must look at the importance of the statute,
the significance of the exemption within the over-all statutory scheme,
and the effects of striking down the statute.. . Forcible sexual assaults
have historically been treated as serious crimes and certainly remain
so today.. Statutes prohibiting such behavior are of the utmost
importance, and to declare such statutes a nullity would have a
disastrous effect on the public interest and safety. The inevitable
conclusion is that the Legislature would prefer to eliminate the
exemptions and thereby preserve the statutes. Accordingly we choose
the remedy of striking the marital exemption from sections 130.35 and
130.50 of the Penal Law and the gender exemption from section
130.35 of the Penal Law, so that it is now the law of this State that
any person who engages in sexual intercourse or deviate sexual
intercourse with any other person by forcible compulsion is guilty of
either rape in the first degree or sodomy in the first degree. Because
the statutes under which the defendant was convicted are not being
struck down, his conviction is affirmed.
Though our decision does not "create a crime", it does, of
course, enlarge the scope of two criminal statutes. We recognize that
a court should be reluctant to expand criminal statutes, due to the
danger of usurping the role of the Legislature, but in this case
overriding policy concerns dictate our following such a course in
light of the catastrophic effect that striking down the statutes and thus
creating a hiatus would have... Courts in other States have in
numerous cases applied these same principles in eliminating an
unconstitutional exception from a criminal statute and thereby
enlarging the scope of the statute. The decision most similar factually
to the present one comes from the Alaska Supreme Court in Plas v
State (598 P2d 966). That court addressed an equal protection
challenge by a female prostitute to a statute which criminalized
prostitution, and defined it as a female offering her body for sexual
intercourse for hire. The court agreed with the defendant that the
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statute violated equal protection because it covered only females, but
chose to remedy this underinclusion by striking the definition, thereby
expanding the statute to cover any person who engaged in
prostitution, and affirmed her conviction."
[Emphasis is mine.]
178. As alluded to above, in FWLD, the Supreme Court of Nepal was
called upon to examine the constitutional validity of Chapter No.1 on rape
found in the Country Code. This chapter by not including in the definition of
rape- non-consensual sexual intercourse between spouses, extended
immunity to the offending husband. The State represented by the Attorney
General had, broadly, advanced the following arguments; quite similar to
what was put to us by the intervenors :
(i) Married and unmarried woman cannot be treated alike. Therefore, the
equality clause is not violated.
(ii) The impugned provision has been framed keeping in mind that once
parties enter into marriage, the consent for sexual intercourse is
permanent.
(iii) There are other remedies available to the wife who is injured, such
as divorce and having the husband booked for "battery".
(iv) It is for the legislature to conclude as to what sorts of acts committed
by a person or group of persons in a society need to be criminalised and
the punishment that should be imposed.
(v) It is not in conformity with Hindu religion to have a husband take
consent to have sexual intercourse with his own wife.
179. The Supreme Court of Nepal after relying upon various international
conventions including CEDAW and judgment of the New York Court of
Appeals in People v Liberta, concluded that there is a gap in criminal law
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insofar as it did not include marital rape as a criminal offence. The Court
went on to rule that since norms and values in criminal law had to keep pace
with time, that gap was required to be filled. Consequently, while the writ
petition was quashed (a procedure peculiar to Nepal) holding that that the
impugned definition of rape was not inconsistent with the Constitution, a
direction was issued to the Parliament to introduce a Bill to fill the gaps
concerning marital rape.
179.1. It appears that the gap pointed out in FWLD (Nepal) was filled;
however, the punishment provided to offending husbands was considerably
less. Insofar as the offending husband was concerned, under Section 3(6) of
the Chapter on Rape, the punishment ranged between three to six months,
whereas in other cases, the period of incarceration was much longer, which
was corelated to the age of the victim. This provision was challenged in Jit
Kumari (Nepal).
179.2. In this case, the Court found that the petitioner had been sexually
abused by her husband.
179.3. The petitioner, on the other hand, had argued that because the
punishment imposed on the offending husband in a case involving marital
rape was minimal, he would be released on bail pending adjudication of his
appeal, leading to further victimisation. This plea found favour with the
Court and, accordingly, a direction was issued to the State to amend the law
to reconsider the quantum of punishment, concerning marital rape.
180. The judgment of the Supreme Court of Philippines in People v. Edgar
also concerned the issue of marital rape. The complainant/wife had been
subjected to rape by her husband in the presence of her children. Several
defences were taken including that the wife had falsely accused the husband
of rape; the wife had extra marital affairs and that the wife wanted to usurp
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husband's business. The Supreme Court after taking note, inter alia, of the
Hale doctrine, the provisions of CEDAW and the judgment of the New York
Court of Appeals in People v. Liberta made the following pertinent
observations:
"Rape is a crime that evokes global condemnation because it is an
abhorrence to woman's value and dignity as a human being. It
respects no time, place, age, physical condition or social status. It can
happen anywhere and it can happen to anyone. Even, as shown in the
present case, to a wife, inside her time-honored fortress, the family
home, committed against her by her husband who vowed to be her
refuge from cruelty. The herein pronouncement is an affirmation to
wives that our rape laws provide the atonement they seek from their
sexually coercive husbands.
Husbands are once again reminded that marriage is not a license to
forcibly rape their wives. A husband does not own his wife's body by
reason of marriage. By marrying, she does not divest herself of the
human right to an exclusive autonomy over her own body and thus,
she can lawfully opt to give or withhold her consent to marital coitus.
A husband aggrieved by his wife's unremitting refusal to engage in
sexual intercourse cannot resort to felonious force or coercion to
make her yield. He can seek succor before the Family Courts that can
determine whether her refusal constitutes psychological incapacity
justifying an annulment of the marriage.
Sexual intimacy is an integral part of marriage because it is the
spiritual and biological communion that achieves the marital purpose
of procreation. It entails mutual love and self-giving and as such it
contemplates only mutual sexual cooperation and never sexual
coercion or imposition.
The Court is aware that despite the noble intentions of the herein
pronouncement, menacing personalities may use this as a tool to
harass innocent husbands. In this regard, let it be stressed that
safeguards in the criminal justice system are in place to spot and
scrutinize fabricated or false marital rape complaints and any person
who institutes untrue and malicious charges will be made answerable
under the pertinent provisions of the RPC and/or other laws."
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[Emphasis is mine.]
181. Insofar as the application of international conventions/covenants is
concerned, the established law is that the courts in India can take recourse to
international covenants as long as they are not inconsistent with the
domestic municipal law. As a matter of fact, the domestic courts "are under
an obligation to give due regard to international conventions and norms for
construing domestic laws when there is no inconsistency between them."
[See Anuj Garg.]
181.1. A case in point is Githa Hariharan v. RBI (1999) 2 SCC 22850. In
this case, the Supreme court while construing the provisions of Section 6(a)
of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the
Guardian and Wards Act, 1890 which were challenged on the ground that it
violated the equality clause in the constitution took recourse to CEDAW and
the Beijing Declaration to reach a conclusion that a woman could not be
relegated to an inferior position vis-a-vis her guardianship rights qua a
minor, when pitted against the father's right qua the child. [Also see
Vishaka; Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 36051;
and Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC
75952.]
181.2. It is relevant to note that both in Vishaka and Apparel Export
Promotion Council case, the Supreme Court adverted to CEDAW. Both
these cases again concerned women, who were subjected to sexual
harassment, albeit, at work places. Insofar as Jolly George Varghese case is
concerned, Justice V. R. Krishna Iyer [as he then was], while interpreting
Section 51 of the CPC, drew inspiration from International Covenant on
50
Cited with approval in Anuj Garg.
51
In short "Jolly George Varghese case"
52
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Civil and Political Rights (ICPCR).
181.3. I do not wish to multiply cases in which Supreme Court and Courts all
over the country from time to time have relied upon international
conventions, covenants and declarations as aid to their reasoning in reaching
a conclusion, in matters, which concern violation of civil rights and/or
human rights. It is also important to remind ourselves, something I have
mentioned above, that the framers of our Constitution drew inspiration from
Constitutional documents concerning other countries such as USA, Canada
and Australia. Therefore, the argument that one should not look at decisions
of other jurisdictions or refer to international
conventions/covenants/declarations, disregards the fact that we live in an
inter-connected global environment where there is constant exchange of
ideas and frameworks adopted by one or the other country. If I may add, by
way of figure of speech, where information is concerned, the "Earth is flat".
182. Thus, in the context of the foregoing discussion, it would be
instructive to peruse and bear in mind the following brief extracts from
certain Conventions/Declarations, which are relevant to the issue at hand
and none of them, in my opinion, are inconsistent with the domestic law :
182.1. CEDAW
" Article I
For the purposes of the present Convention, the term "discrimination
against women" shall mean any distinction, exclusion or restriction
made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.
Article 2
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States Parties condemn discrimination against women in all its forms,
agree to pursue by all appropriate means and without delay a policy
of eliminating discrimination against women and, to this end,
undertake:
xxx xxx xxx
(b) To adopt appropriate legislative and other measures, including
sanctions where appropriate, prohibiting all discrimination against
women;
(c) To establish legal protection of the rights of women on an equal
basis with men and to ensure through competent national tribunals
and other public institutions the effective protection of women against
any act of discrimination;
(g) To repeal all national penal provisions which constitute
discrimination against women.
Article 15
1. States Parties shall accord to women equality with men before the
law.
Article 16
1. States Parties shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage and
family relations and in particular shall ensure, on a basis of equality
of men and women:
xxx xxx xxx
(c) The same rights and responsibilities during marriage and at its
dissolution;"
[Also see: General Recommendation No. 19: Violence Against Women
updated by General Recommendation No. 35 on gender -based violence
against women53]
182.2. The Declaration on the Elimination of Violence against Women
53
General Recommendation No. 35
In its general recommendation No. 19 on violence against women, adopted by the Committee on the
Elimination of Discrimination Against Women, at its eleventh session in 1992, the Committee clarified that
discrimination against women as defined in Article 1of the Convention, included gender-based violence,
that is, "violence which is directed against a woman because she is a woman or that affects women
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[DEVAW]54, inter alia, includes marital rape in Article 2(a)55, which
highlights the heightened awareness in most jurisdictions across the world
that violence against women is an obstacle to attainment of equality,
development and peace and an obstacle to enjoyment of rights and feelings,
which otherwise are natural rights conferred on any human being.
182.3. Beijing Declaration56
"D. Violence against women
112. Violence against women is an obstacle to the achievement of the
objectives of equality, development and peace. Violence against
women both violates and impairs or nullifies the enjoyment by women
of their human rights and fundamental freedoms. The long-standing
failure to protect and promote those rights and freedoms in the case
of violence against women is a matter of concern to all States and
should be addressed. Knowledge about its causes and consequences,
as well as its incidence and measures to combat it, have been greatly
expanded since the Nairobi Conference. In all societies, to a greater
or lesser degree, women and girls are subjected to physical, sexual
and psychological abuse that cuts across lines of income, class and
culture. The low social and economic status of women can be both a
cause and a consequence of violence against women.
113. The term "violence against women" means any act of gender-
based violence that results in, or is likely to result in, physical, sexual
or psychological harm or suffering to women, including threats of
such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or private life. Accordingly, violence against
women encompasses but is not limited to the following: \
(a) Physical, sexual and psychological violence occurring in the
family, including battering, sexual abuse of female children in the
54
Ratified by the United Nations General Assembly on 20.12.1993
55
Article 2
Violence against women shall be understood to encompass, but not be limited to, the following:
a. Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of
female children in the household, dowry-related violence, marital rape, female genital mutilation and other
traditional practices harmful to women, non-spousal violence and violence related to exploitation;
56
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household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women, non-
spousal violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the
general community, including rape, sexual abuse, sexual harassment
and intimidation at work, in educational institutions and elsewhere,
trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or
condoned by the State, wherever it occurs."
[Emphasis is mine.]
182.4. The aforesaid extracts from CEDAW, DEVAW and the Beijing
Declaration are self-explanatory and hence do not need much dilation. To
put it succinctly, it is now well-recognised in most jurisdictions that violence
against women means an act of gender based violence, which includes inter
alia marital rape. It is well documented that marital rape is recognised as an
offence in more than 50 countries. We can ignore this rich resource material
only at our own peril.
XI Parliamentary Committee Reports
183. As noticed in the earlier part of this judgment, both, Mr Sai Deepak
and Mr Kapoor have called for judicial self-restraint because, despite several
debates on the merits and demerits of MRE in various forums, the legislature
chose not to change the status quo. While noticing this objection, I have
taken note of the documents which were cited in this behalf. [See sub-para
(xx) of paragraph 9.1 and sub-para (ii) of paragraph 11 above.]
184. Messrs Sai Deepak and Kapoor are right that despite the views being
expressed for and against retaining MRE on the statute in forums such as the
Parliamentary Standing Committee, the Lok Sabha Committee on
Empowerment of Women, the 172nd Law Commission and the Justice
Verma Committee, the status quo continues to obtain.
184.1. This, in my view, is no reason not to intercede in the matter if,
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otherwise, I am convinced that MRE (as I am) is violative of the married
women's fundamental rights under Articles 14, 15, 19(1)(a) and 21 of the
Constitution. The fact that the legislature has not intervened, as observed by
the Supreme Court in the Navtej Singh Johar case in the context of the
challenge to Section 377 of the IPC is a "neutral fact" and, hence, cannot
impede the examination by the court as to the Constitutional validity of
MRE.
184.2. The observations made in this context by the Supreme Court in Navtej
Singh Johar being apposite are extracted hereafter:
"364. The fact that the legislature has chosen not to amend the
law, despite the 172ndLaw Commission Report specifically
recommending deletion of Section 377, may indicate that
Parliament has not thought it proper to delete the aforesaid
provision, is one more reason for not invalidating Section 377,
according to Suresh Kumar Koushal [Suresh Kumar Koushal v.
Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. This is
a little difficult to appreciate when the Union of India admittedly
did not challenge the Delhi High Court judgment [Naz
Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762
: (2009) 111 DRJ 1] striking down the provision in part.
Secondly, the fact that Parliament may or may not have chosen to
follow a Law Commission Report does not guide the Court's
understanding of its character, scope, ambit and import as has
been stated in Suresh Kumar Koushal[Suresh Kumar Koushal v.
Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. It is a
neutral fact which need not be taken into account at all. All that
the Court has to see is whether constitutional provisions have
been transgressed and if so, as a natural corollary, the death
knell of the challenged provision must follow."
[Emphasis is mine.]
184.3. This apart, I am persuaded to attach weight to the observations and
the final recommendations made by Justice Verma Committee in its Report
on marital rape which were made after a deep dive into the prevailing
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ecosystem concerning a rape law, both, within and outside the country. I
intend to extract the same hereafter :
"72. The exemption for marital rape stems from a long out-dated
notion of marriage which regarded wives as no more than the
property of their husbands. According to the common law of
coverture, a wife was deemed to have consented at the time of the
marriage to have intercourse with her husband at his whim.
Moreover, this consent could not be revoked. ...
73. This immunity has now been withdrawn in most major
jurisdictions. In England and Wales, the House of Lords held in
1991 that the status of married women had changed beyond all
recognition since Hale set out his proposition. Most importantly,
Lord Keith, speaking for the Court, declared, 'marriage is in
modern times regarded as a partnership of equals, and no longer
one in which the wife must be the subservient chattel of the
husband.'
74. Our view is supported by the judgment of the European
Commission of Human Rights in C.R. v UK, which endorsed the
conclusion that a rapist remains a rapist regardless of his
relationship with the victim. Importantly, it acknowledged that
this change in the common law was in accordance with the
fundamental objectives of the Convention on Human Rights, the
very essence of which is respect for human rights, dignity and
freedom. This was given statutory recognition in the Criminal
Justice and Public Order Act 1994.
75. We find that the same is true in Canada, South Africa and
Australia. In Canada, the provisions in the Criminal Code, which
denied criminal liability for marital rape, were repealed in 1983.
It is now a crime in Canada for a husband to rape his wife. South
Africa criminalised marital rape in 1993, reversing the common
law principle that a husband could not be found guilty of raping
his wife. Section 5 of the Prevention of Family Violence Act 1993
provides: 'Notwithstanding anything to the contrary contained in
any law or in the common law, a husband may be convicted of the
rape of his wife.' In Australia, the common law 'marital rape
immunity' was legislatively abolished in all jurisdictions from
1976.88 In 1991, the Australian High Court had no doubt that: 'if
it was ever the common law that by marriage a wife gave
irrevocable consent to sexual intercourse by her husband, it is no
longer the common law.' According to Justice Brennan (as he
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then was): 'The common law fiction has always been offensive to
human dignity and incompatible with the legal status of a spouse.'
76. These jurisdictions have also gone further and recognised
that consent should not be implied by the relationship between the
accused and the complainant in any event. In the Canadian 2011
Supreme Court decision in R v. J.A., Chief Justice McLachlin
emphasised that the relationship between the accused and the
complainant 'does not change the nature of the inquiry into
whether the complaint consented' to the sexual activity. The
defendant cannot argue that the complainant's consent was
implied by the relationship between the accused and the
complainant. In South Africa, the 2007 Criminal Law (Sexual
Offences and Related Matters) Amendment Act ('Sexual Offences
Act') provides, at s. 56 (1), that a marital or other relationship
between the perpetrator or victim is not a valid defence against
the crimes of rape or sexual violation.
77. Even when marital rape is recognised as a crime, there is a
risk that judges might regard marital rape as less serious than
other forms of rape, requiring more lenient sentences, as
happened in South Africa. In response, the South African
Criminal Law (Sentencing) Act of 2007 now provides that the
relationship between the victim and the accused may not be
regarded as a 'substantial and compelling circumstance'
justifying a deviation from legislatively required minimum
sentences for rape.
78. It is also important that the legal prohibition on marital
rape is accompanied by changes in the attitudes of prosecutors,
police officers and those in society more generally. For example,
in South Africa, despite these legal developments, rates of marital
rape remain shockingly high. A 2010 study suggests that 18.8% of
women are raped by their partners on one or more occasion.
Rates of reporting and conviction also remain low, aggravated by
the prevalent beliefs that marital rape is acceptable or is less
serious than other types of rape. Changes in the law therefore
need to be accompanied by widespread measures raising
awareness of women's rights to autonomy and physical integrity,
regardless of marriage or other intimate relationship. This was
underlined in Vertido v The Philippines, a recent Communication
under the Optional Protocol of the Convention on the Elimination
of Discrimination Against Women (CEDAW), where the CEDAW
Committee emphasised the importance of appropriate training for
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judges, lawyers, law enforcement officers and medical personnel
in understanding crimes of rape and other sexual offences in a
gender-sensitive manner.
79. We, therefore, recommend that:
i. The exception for marital rape be removed.
ii. The law ought to specify that:
a. A marital or other relationship between the
perpetrator or victim is not a valid defence against
the crimes of rape or sexual violation;
b. The relationship between the accused and the
complainant is not relevant to the inquiry into
whether the complainant consented to the sexual
activity;
c. The fact that the accused and victim are married
or in another intimate relationship may not be
regarded as a mitigating factor justifying lower
sentences for rape.
80. We must, at this stage, rely upon Prof. Sandra Fredman of
the University of Oxford, who has submitted to the Committee that
that "training and awareness programmes should be provided to
ensure that all levels of the criminal justice system and ordinary
people are aware that marriage should not be regarded as
extinguishing the legal or sexual autonomy of the wife"."
184.4. As is well known, the Justice Verma Committee was constituted in
the backdrop of the brutal gang-rape of a young lady which occurred in
Delhi on December 16, 201257. A spate of recommendations were made,
some of which were accepted and, thus, formed a part of the Criminal Law
(Amendment) Act, 2013. Amongst several amendments that were brought
about by the Criminal (Amendment) Act, 2013 included the expansion of
the definition of "rape", enhancing the minimum mandatory sentence under
Section 376(1) and insertion of Section 376B which substituted Section
376A of the IPC. As noticed above, the legislature, for whatever reason,
stopped short of accepting the recommendations of the Justice Verma
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Committee concerning the removal of MRE.
185. Given the foregoing discussion, I am clearly of the view that the
recommendations were in line with the constitutional mores and/or morality
which in the recent past have been captured and reiterated by the Supreme
Court in the judgments rendered in Joseph Shine and Navtej Singh Johar.
186. Thus, for the sake of argument, even if I concur with Messrs Sai
Deepak and Kapoor that the State should define, monitor and sanction what
would be appropriate conduct in the context of sexual activity between
married couples, what needs to be emphasized is that the State, as a
representative of the society, shares the responsibility to deprecate and
punish sexual abuse/violence of every form. This responsibility, cast on the
State, extends beyond interpersonal space ordinarily available to a married
couple where there is no violence. Thus, when the State exempts criminal
acts such as forced sex within marriage, it unwittingly engages in unequal
disbursement of rights conferred by the Constitution. Consequentially, those,
who commit the offence i.e., the husbands do not suffer the rigour of the law
and those, who are victims, i.e., the wives get no protection from the law.
[See Kersti Yllo and M. Gabriela Torres, Marital Rape -Consent, Marriage
and Social Change in Global Context: Prologue - Understanding Marital
Rape in Global Context, Kersti Yllo, page 13.]
XII Material & Case law Cited on behalf of the Intervenors
187. Before I conclude, I must now embark upon the exercise of delving
through the judgments and the materials cited on behalf of the intervenors in
support of their submissions. I must state at the outset that none of the
material/judgments cited have persuaded me to hold that the impunity
available to the husbands because of MRE should not be disturbed. In other
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words, the status quo should continue till such time the Executive/the
Legislature decides to intercede in the matter.
188. Let me first begin with the 167th Report of the Parliamentary Standing
Committee of Home Affairs on the Criminal Law (Amendment) Bill, 2012.
188.1. This report was cited to demonstrate that despite deliberation, the
matter was not taken forward and MRE continued to remain on the statute.
Apart from the fact that deliberations of the Standing Committee on which
the legislature chose not to move forward, as indicated above by me, is a
"neutral fact", the extract placed before us clearly shows that several
members had serious concerns about retaining MRE on the statute. The
same is evident from reading the following extract from paragraphs 5.9.1
and 5.10.2 :
"5.9.1 ... Some Members also suggested that somewhere there
should be some room for wife to take up the issue of marital
rape. It was also felt that no woman takes marriage so simple
that she will just go and complain blindly. Consent in marriage
cannot be consent forever. ...
5.10.2 ... One condition that can be transmitted through sexual
intercourse and that person knowingly commits such intercourse
without use of protection and that act should also be brought
under aggravated crime. ...."
[Emphasis is mine.]
188.2. The aforesaid extracts establish that there was a serious concern about
the issue at hand. Although the majority on the Committee felt that the
deletion of MRE would destroy the "institution of marriage", other members
had different concerns.
188.3. To my mind, this by itself does not take the cause of the intervenors
any further when looked at in the backdrop of physical and psychological
impairment caused to a married woman who is subjected to rape by her
husband.
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189. The judgment in the matter of Laxmi Devi was cited in support of the
proposition that the court must not easily invalidate a statute as it has the
backing of the Legislature which comprises elected representatives. This
case was concerned with a challenge laid to Section 47A of the Indian
Stamp Act, 1899 (as amended by A.P. Act 8 of 1998). The impugned
provision required a party to deposit 50% of the stamp duty as a condition
precedent for making a reference to the Collector. The said provision was
assailed on the ground that it was unconstitutional. It is in this context that
the aforementioned observations were made by the court, but what is lost
sight of, while relying on those observations, are the observations that are
made in paragraphs 86 and 91 of the judgment :
"88. In our opinion, therefore, while Judges should practise
great restraint while dealing with economic statutes, they should
be activist in defending the civil liberties and fundamental rights
of the citizens. This is necessary because though ordinarily the
legislature represents the will of the people and works for their
welfare, there can be exceptional situations where the
legislature, though elected by the people may violate the civil
liberties and rights of the people. It was because of this foresight
that the Founding Fathers of the Constitution in their wisdom
provided fundamental rights in Part III of the Constitution which
were modelled on the lines of the US Bill of Rights of 1791 and
the Declaration of the Rights of Man during the Great French
Revolution of 1789.
xxx xxx xxx
91. It must be understood that while a statute is made by the
peoples' elected representatives, the Constitution too is a
document which has been created by the people (as is evident
from the Preamble). The courts are guardians of the rights and
liberties of the citizens, and they will be failing in their
responsibility if they abdicate this solemn duty towards the
citizens. For this, they may sometimes have to declare the act of
the executive or the legislature as unconstitutional."
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[Emphasis is mine.]
189.1. In my view, the judgment provides heft to the proposition formulated
in paragraph 126 to 126.3 above.
190. Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs &
Pharmaceuticals Ltd. (2007) 1 SCC 408 was yet another judgment cited in
support of the proposition that the court should exercise judicial restraint.
This case concerned casual workers who were employed on daily wages
basis. The workmen had been given employment as dependants of
employees who had died in harness. Upon an industrial dispute erupting
between the parties, an award was passed by the Labour Court which held
that workmen were entitled to regularization having regard to the long
period, they had been in service. Besides this, the Labour Court also directed
that workmen should be paid wages equivalent to those that were paid to
regular employees. These directions which were the subject matter of the
award were assailed by the petitioner company before the High Court. The
High Court while agreeing with the petitioner company that the Labour
Court could not have directed regularization, held that the workmen should
continue in service till they reached the age of superannuation. Besides this
the High Court directed that the workmen shall be paid wages at par with the
regular employees.
190.1. It is in this background that the matter reached the Supreme Court.
The Supreme Court after observing that the petitioner company had turned
"sick" disagreed with the directions issued by the High Court as, according
to it, regularization was not a mode of appointment.
190.2. In the facts of the case, the court noted that the workmen were
employed pursuant to an agitation by the union and on compassionate
grounds; and not via a regular mode. It is in these circumstances that the
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court held that the directions issued for continuing the workmen in service
would defeat the constitutional scheme concerning public employment.
190.3. In my view, the observations were clearly fact specific. The Court's
observation that the creation of posts, appointments and regularization fell
within the domain of the executive and/or the legislature, was contextual,
which cannot be applied where a statute or a provision is challenged on the
ground that it violates the fundamental rights of the affected party.
191. Likewise, the judgment rendered in Suresh Seth v. Commissioner,
Indore Municipal Corporation & Ors. (2005) 13 SCC 287 has no
applicability whatsoever to the present case. This was a case where a
challenge was laid to an order passed by the High Court while hearing a
civil revision petition. The petitioner before the Supreme Court had
challenged the appointment of a person who occupied the post of a Mayor
on the ground that he could not have held the post of a Mayor as he was a
sitting member of the Legislative Assembly. However, by the time the
matter reached the Supreme Court, the concerned member's tenure as a
Mayor had expired, and therefore, the appeal, apparently, had been rendered
infructuous. Thus, the court while dismissing the appeal made the
observations to the effect that no mandamus could issue for amendment of
the M.P. Municipal Corporation Act, 1956 disentitling a person from
holding more than one post.
191.1. In my opinion, there is no such situation obtaining in the instant
matters.
192. In the matter of Madhu Kishwar & Ors. v. State of Bihar & Ors.
(1996) 5 SCC 12558, a challenge was laid to certain provisions of Chota
Nagar Tenancy Act, 1908 [in short "CNT Act"]. The provisions disabled the
58
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tribal women from succeeding to the estate of her lineal ascendant. The
custom prevailing amongst persons belonging to Scheduled Tribes restricted
the line of succession to male descendants. The provisions of the CNT Act
were challenged by way of an Article 32 petition. The principal plea was to
bring the provisions of the CNT Act in line with the general principles that,
obtained in the Hindu Succession Act, 1956 [in short 'HSA'], which put
women at par with male descendants. The impediment to such an approach
was Section 2(2) of the HSA.
192.1. A three-member bench rendered the decision in the matter. The
majority on the bench while reading down Sections 7 and 8 of the CNT Act
did not go that far as to strike down the said provisions. The majority
protected the rights of female descendants under Sections 7 and 8 of the
CNT Act by suspending the exclusive right of male succession till the
female descendants chose other means of livelihood, manifested by
abandonment and/or release of the holding. On the other hand, the minority
view, in effect, veered around to the reasoning that the general principles
which found a place in HSA could be applied to Scheduled Tribes.
192.2. It is in this context that the observations of the majority contained in
paragraph 559 have to be viewed. It is also to be borne in mind that on a
59
"5. In the face of these divisions and visible barricades put up by the sensitive tribal people valuing their
own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable
to others, on an elitist approach or on equality principle, by judicial activism, is a difficult and mind-
boggling effort. Brother K. Ramaswamy, J. seems to have taken the view that Indian legislatures (and
Governments too) would not prompt themselves to activate in this direction because of political reasons
and in this situation, an activist court, apolitical as it avowedly is, could get into action and legislate
broadly on the lines as suggested by the petitioners in their written submissions. However laudable,
desirable and attractive the result may seem, it has happily been viewed by our learned brother that an
activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can
at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading
it to awaken, march and reach the goal. For in whatever measure be the concern of the court, it
compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial
parlance as self-restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him in the
paragraph ending on p. 36 (para 46) of his judgment that under the circumstances it is not desirable to
declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each
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direction issued by the court during the pendency of the proceedings, an
exercise was carried out by the Bihar Tribal Consultative Council which
revealed that if the changes, as suggested, are effected in the HSA, the land
over which tribals had ownership right, could get alienated.
192.3. Clearly, both the plurality and the minority views moved in the
direction of granting relief to the tribal women. The methodology adopted
and the degree of relief granted varied. The majority as well as minority
members on the bench took recourse to judicial tools to alleviate the
suffering of female tribals.
192.4. In contrast, in the instant matters, the most recent study, i.e., the
Justice Verma Committee Report, did demonstrate that there was an
imminent need for removing MRE from the statute. Despite a well-
considered report, there has been no movement since 2013 on the issue of
MRE. Therefore, the ratio of the judgment in Madhu Kishwar is not what is
sought to be portrayed on behalf of the intervenors i.e., where courts find
that a statute or a provision in the statute is violative of the fundamental
rights, the same cannot be struck down.
193. As to how and when such judicial tools are employed is demonstrated
in the judgment by the Constitution Bench in the C.B. Gautam case. This
was a case which concerned, inter alia, a challenge to Section 269UD of the
Income Tax Act, 1961 [in short 'Act'] which stood incorporated in Chapter
XX-C of that very Act. The provisions contained in Chapter XX-C, in
particular, Section 269UD, empowered the Central Government to pre-
emptively acquire an immovable property which was a subject matter of an
agreement to sell if it was undervalued by more than 15%. Furthermore, the
provision also vested in the Central Government a right in such property,
albeit, "free from all encumbrances".
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193.1. Thus, two questions principally arose for consideration before the
constitution bench. First, whether the aforementioned provision should have
had embedded in it leeway for an intending purchaser and/or seller to
demonstrate as to why an order for compulsory purchase ought not to be
passed by the appropriate authority, in a given case. Second, whether the all
encompassing expression "free from all encumbrances" should be struck
down as it had no rational nexus with the object sought to be achieved by the
legislation, which was, to prevent tax evasion.
193.2. The Court employed, both, tools, inasmuch as, it read into the
provision, the principles of natural justice i.e., the requirement to issue a
show cause notice to the intending purchaser and/or seller as to why the
property ought not to be compulsorily purchased by the Government.
Furthermore, it struck down the expression "free from all encumbrances"
and, while doing so, the court made the following pertinent observations :
"36. ....We agree that in order to save a statute or a part thereof
from being struck down it can be suitably read down. But such
reading down is not permissible where it is negatived by the
express language of the statute. Reading down is not permissible
in such a manner as would fly in the face of the express terms of
the statutory provisions. ...."
[Emphasis is mine.]
193.3. The Court, thus, excised from the statute the aforementioned
expression "free from all encumbrances" as, according to it, it failed to meet
the test of Article 14 and sustained the remaining parts of the provision.
194. The judgment rendered in Census Commissioner & Ors. v. R.
Krishamurthy, (2015) 2 SCC 796, in my view, is also not applicable to the
issue at hand. In this case, the court was called upon to consider whether the
direction issued by the High Court to the Census Commissioner that census
should be carried out in a manner that caste-wise enumeration and/or
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tabulation get reflected in its report, was warranted, given the fact that no
such direction had been issued by the Central Government under Section 8
of the Census Act, 1948 (as amended in 1993).
194.1. The Court held that the direction was flawed as the controversy that
arose for adjudication before the High Court was entirely different. Before
the High Court, a challenge was laid to the appointment of a person to a
public office who was appointed solely on the basis that he belonged to a
Scheduled Tribe. The High Court had noted that there were no persons
belonging to a Scheduled Tribe residing in the place concerned (i.e., the
Union Territory of Pondicherry) and that a presidential notification under
Article 342 of the Constitution had not been issued. Based on this, the High
Court concluded that no reservations for Scheduled Tribes could be made in
the Union Territory of Pondicherry. Having said that, the High Court did not
stop at this, it went on to issue directions to the Census Commissioner even
though he was not a party to the proceedings.
194.2. A close look at the judgment also shows that a second writ petition
was filed which was allowed in terms of the order passed in the first writ
petition.
194.3. That said, the following observations made by the court shed light on
how one needs to proceed in matters where a policy decision or a provision
in the statute, as in the instant matters, is assailed.
"25. Interference with the policy decision and [the] issue of a
mandamus to frame a policy in a particular manner are
absolutely different. The Act has conferred power on the Central
Government to issue notification regarding the manner in which
the census has to be carried out and the Central Government has
issued notifications, and the competent authority has issued
directions. It is not within the domain of the court to legislate.
The courts do interpret the law and in such interpretation certain
creative process is involved. The courts have the jurisdiction to
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declare the law as unconstitutional. That too, where it is called
for. The court may also fill up the gaps in certain spheres
applying the doctrine of constitutional silence or abeyance. But,
the courts are not to plunge into policy-making by adding
something to the policy by way of issuing a writ of mandamus.
There the judicial restraint is called for remembering what we
have stated in the beginning. The courts are required to
understand the policy decisions framed by the executive. If a
policy decision or a Notification is arbitrary, it may invite the
frown of Article 14 of the Constitution. ...."
[Emphasis is mine.]
194.4. In my opinion, if at all, the observations help the cause of the
petitioners.
195. The Social Action Forum for Manav Adhikar & Anr. v. Union of
India, Ministry of Law & Justice & Ors. (2018) 10 SCC 443 was a case
where the Supreme Court was, inter alia, considering the viability of some
of the directions issued by one of its benches in the matter of Rajesh
Sharma & Ors. v. State of U.P. & Anr. (2018) 10 SCC 47260 in the context
of Section 498A of the IPC.
195.1. The Supreme Court, however, concluded that some of the directions
contained in Rajesh Sharma did not protect the interests of married women
which was the avowed object of Section 498A of the IPC. Therefore, the
Court, inter alia, did away with the direction issued for the constitution of a
Family Welfare Committee under the aegis of the District State Legal
Authority and the consequent powers that had got conferred upon it.
195.2. Pertinently, while doing so, the Supreme Court also recognized the
fact that a court could, in certain cases, in furtherance of fundamental rights,
issue directions in the absence of law. In this context, reference was made to
Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244; Vishaka; and
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Common Cause (A Registered Society) v. Union of India & Anr. (2018) 5
SCC 1.
196. State of Bihar & Ors. v. Bihar Distillery Ltd., (1997) 2 SCC 453, was
cited by the intervenors to rely upon the dicta that the Court should presume
the constitutionality of a statute enacted prior to the Constitution coming
into force as it represented the will of the people. As alluded to above, even
after having applied the presumption of constitutionality doctrine to MRE, I
still could not bring myself to agree with the intervenors that MRE was not
violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution.
197. In Raja Ram Pal case, the Supreme Court was called upon to
consider the following two issues: First, whether the two Houses of the
Parliament in the exercise of powers, privileges and immunities, as
contained in Article 105 of the Constitution, could expel their respective
members from the membership of the House. Second, if such power existed,
could it be made subject to judicial review and, if so, what was the scope of
the judicial review.
197.1. Mr Kapoor had cited this judgment to contend that the motive of the
Legislature in enacting a particular statute was beyond the scrutiny of the
courts. One cannot quibble with this proposition, but what is important is the
far reaching (and I would say seminal observations) that were made by the
Constitution Bench in the Raja Ram Pal case. The bench enunciated the
principle that where governance is rooted in the constitution, absolutism is
abhorred and that while due deference has to be given to a co-ordinate organ
such as the Parliament, its acts are amenable to judicial scrutiny.
"431. We may summarise the principles that can be culled out
from the above discussion. They are:
xxx xxx xxx
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(a) Parliament is a coordinate organ and its views do deserve
deference even while its acts are amenable to judicial scrutiny;
(b) The constitutional system of government abhors absolutism
and it being the cardinal principle of our Constitution that no
one, howsoever lofty, can claim to be the sole judge of the power
given under the Constitution, mere coordinate constitutional
status, or even the status of an exalted constitutional
functionaries, does not disentitle this Court from exercising its
jurisdiction of judicial review of actions which partake the
character of judicial or quasi-judicial decision;
xxx xxx xxx
(f) The fact that Parliament is an august body of coordinate
constitutional position does not mean that there can be no
judicially manageable standards to review exercise of its power;
xxx xxx xxx
(h) The judicature is not prevented from scrutinising the validity
of the action of the legislature trespassing on the fundamental
rights conferred on the citizens;
xxx xxx xxx
(s) The proceedings which may be tainted on account of
substantive or gross illegality or unconstitutionality are not
protected from judicial scrutiny;
(u) An ouster clause attaching finality to a determination does
ordinarily oust the power of the court to review the decision but
not on grounds of lack of jurisdiction or it being a nullity for
some reason such as gross illegality, irrationality, violation of
constitutional mandate, malafides, non-compliance with rules of
natural justice and perversity."
[Emphasis is mine.]
198. The judgment in Sunil Batra v. Delhi Administration & Ors. (1978)
4 SCC 49461 was relied upon by the intervenors to emphasize the
observations which, in effect, conveyed that if certain provisions of law
construed in one way would be consistent with the Constitution and, if
another interpretation is placed, which would render them unconstitutional,
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the Court would lean in favour of the former construction.
198.1. To my mind, once again, I cannot but wholly agree with this
enunciation of law as captured above. However, having concluded that MRE
read in whichever way is not only unconstitutional and morally repugnant,
the aforementioned observation, read out of context, will not help shore up
the case of the intervenors. The judgment in Sunil Batra's case was
rendered based on the letter written by the petitioner to the Supreme Court
concerning the brutal assault by a Head Warder on another prisoner. It is in
this backdrop that the court issued a slew of directions to the Delhi
Administration in the interest of incarcerated persons.
199. A perusal of the judgment in Anuja Kapoor v. Union of India & Ors,
in W.P.(C) No.7256/2019 passed on 09.07.2019 shows that directions were
sought from the court to embed in law, marital rape, as a ground for divorce.
It is in this context, that the petitioner sought the issuance of further
directions for framing appropriate guidelines, laws and bye-laws. The court
by a brief order dismissed the petition, inter alia, holding "3. Drafting of the
law is the function of Legislature and not of the Court. Court is more
concerned in the interpretation of the law rather than the drafting of the
laws.....This is a function of the Legislature ........"
199.1. The argument advanced on behalf of the petitioners is that only when
the impugned provisions are struck down or removed from the statute can
the Legislature take the next steps in the matter; I tend to agree with this
submission.
199.2. The aforesaid order does not, in my view, by any stretch of the
imagination, suggest that the court cannot examine the legal tenability of the
impugned provisions or that a litigant oppressed by a provision in the statute
should wait till such time the executive or the Legislature decides to act in
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the matter.
200. In Mohd. Hanif Quareshi & Ors v. State of Bihar & Ors., AIR 1958
SC 73162, a challenge was laid to ban imposed in the States of Bihar, Uttar
Pradesh and Madhya Pradesh concerning the slaughter of cows. A bunch of
petitions under Article 32 of the Constitution were filed to strike down the
ban. The Court in its judgment, reiterated the meaning, scope and effect of
Article 14 of the Constitution. The Court also ruled, which is something that
the intervenors lay stress on, as noticed above, that presumption of
constitutionality doctrine should apply to a statute enacted by the Legislature
and that, if the same is assailed, the burden lies upon one who brings the
challenge to the Court. [See paragraph 15 of Mohd. Hanif Quareshi.]
200.1. Pertinently, after having expounded on the scope and effect of Article
14, the Court upheld the Bihar Act insofar as it prohibited the slaughter of
cows of all ages which included the calves but went on to declare as "void"
the slaughter of she-buffaloes, breeding buffaloes and working buffaloes as
the impugned provision did not prescribe a test or requirement as to their age
or usefulness. This part of the Act was struck down as, according to the
Court, it violated the petitioner's fundamental rights under Article 19(1)(g)
of the Constitution. [See paragraph 45 of Mohd. Hanif Quareshi.]
200.2. What emerges clearly from the judgment is that unless the differentia,
based on which classification is made, meets the nexus test, such
classification would not pass muster of the fundamental rights provided in
the Constitution.
200.3. In the instant matters, the position is quite similar and, therefore, in
my view, the judgment supports the contentions advanced by the petitioner.
201. Briefly, in Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay
62
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Environmental Action Group & Ors., AIR 2006 SC 1489, the challenge
laid, inter alia, concerned the interpretation that had to be accorded to the
amended Development Control Regulation No.58, framed by the State of
Maharashtra. A public interest petition was filed before the Bombay High
Court by persons who claimed to be the residents of Mumbai and who were
desirous of protecting open spaces in the city for preserving ecological
balance and for providing public houses to the needy. The Bombay High
Court while allowing the writ petition had, inter alia, held that amended
DCR 58 which concerned open lands would also apply to the land which
turned into open space after the demolition of the structures that were built
upon such land. It is in this backdrop that the matter reached the Supreme
Court. The Supreme Court made some telling observations, which once
again, in my view, only re-emphasize the principle that constitutional courts
are vested with the power to carry out judicial review of not only legislation
and subordinate legislation but also policy decisions, albeit, with usual
caveats. [See paragraphs 103 to 111 and 114 to 120.]
201.1. It needs to be stated that the Court accepted the dicta enunciated in its
earlier judgment rendered in Anil Kumar Jha v. Union of India & Ors.
(2005) 3 SCC 150 that it could interfere even with a "political decision",
although, it may amount to entering the "political thicket". Besides this, the
observations made in paragraph 120 that where issues brought before the
court concerned enforcement of human rights, the Court's interpretation and
application of constitutional principles is not limited to the "black letter of
[the] law".
201.2. The Court also observed that expansive meaning to such rights has
been given by taking recourse to "creative interpretations" which, in the past
has led to the creation of new rights. The principles adverted to by the
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Supreme Court in this case only strengthen the cause of the petitioners.
202. Shri Ram Krishna Dalmia & Ors. v. Shri Justice S.R. Tendolkar &
Ors. AIR 1958 SC 538 case was adverted to by the Supreme Court in Mohd.
Hanif Quareshi's judgment. Apart from the reiteration of the principle that
the constitutionality of a statute is to be presumed and that the burden lies
upon the one who assails the same because the legislature understands the
need of its own people, there were several other principles which were
alluded to by the Court after examining the whole host of cases. Amongst
others, two important principles the Court adverted to are set forth hereafter:
"11. xxx xxx xxx
(f) that while good faith and knowledge of the existing
conditions on the part of a legislature are to be presumed, if
there is nothing on the face of the law or the surrounding
circumstances brought to the notice of the court on which the
classification may reasonably be regarded as based, the
presumption of constitutionality cannot be carried to the extent
of always holding that there must be some undisclosed and un-
known reasons for subjecting certain individuals or corporations
to hostile or discriminating legislation. ...
12. xxx xxx xxx
(ii) A statute may direct its provisions against one individual
person or thing or to several individual persons or things but no
reasonable basis of classification may appear on the face of it or
be deducible from the surrounding circumstances, or matters of
common knowledge. In such a case the court will strike down the
law as an instance of naked discrimination, as it did
in Ameerunnissa Begum v. Mahboob Begum [(1953) SCR 404]
and Ramprasad Narain Sahi v. State of Bihar [(1953) SCR
1129]."
[Emphasis is mine.]
203. The facts obtaining in Beeru v. State NCT of Delhi 2014 [1] JCC 509
were briefly the following :
203.1. The allegation against the appellant accused was that he had raped a
minor girl aged 14 years. The appellant accused was the uncle of the victim.
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The trial court had convicted the appellant accused and imposed life
imprisonment which was reduced to 10 years by the High Court while
sustaining the conviction. The observations made in paragraph 36 of the
judgment wherein reference is made to the difference in punishment
imposed under sub-section (1) as against sub-section (2) of Section 376, in
my view, only states a fact which is discernible upon a bare reading of the
said provisions.
203.2. What would have to be borne in mind is whether or not rape in a
particular set of circumstances can be classified as aggravated rape. Thus,
punishment as provided under sub-section (2) of Section 376, may get
attracted in a given case. I have already indicated above that in any case the
offending husband will not fall within the ambit of Section 376(2)(f) of IPC.
204. Saregama India Ltd. v. Next Radio Ltd. & Ors. (2022) 1 SCC 701
case concerned a challenge to an interim order issued by a Division Bench
of the Madras High Court in a bunch of appeals. Before the Madras High
Court, appeals had been filed under Article 226 of the Constitution to assail
the validity of Rule 29(4) of the Copyright Rules, 2013 [in short '2013
Rules']. The appellants before the Court were aggrieved by the interim
directions issued by the Division Bench even while the main challenge was
still pending before it. It was also the contention of the appellants that the
High Court via an interim order had re-written the provisions of Rule 29(4)
of the 2013 Rules. The Supreme Court, agreed with the contentions of the
appellants and in that context, inter alia, observed that a court could not re-
write a statute and/or transgress the domain of policy making. [See
paragraphs 20 and 21.]
204.1. This apart, the Supreme Court reiterated its power of judicial review
and, thus, inter alia, observed as follows :
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"22. The court is entrusted by the Constitution of [sic with] the
power of judicial review. In the discharge of its mandate, the
court may evaluate the validity of a legislation or rules made
under it. A statute may be invalidated if it is ultra vires
constitutional guarantees or transgresses the legislative domain
entrusted to the enacting legislature. ...."
[Emphasis is mine.]
204.2. The instant matters do not involve rewriting of the provision as is
sought to be conveyed on behalf of the intervenors.
205. In the Shayara Bano case, there were two neat questions which arose
for consideration before the Court. First, whether the Shariat Act recognized
and enforced triple talaq as a rule of law to be followed by the Courts in
India. Second, whether personal laws are outside the ambit of Article 13(1)
of the Constitution. In this context, the correctness of the judgment rendered
by the Bombay High Court in the State of Bombay v. Narasu Appa Mali,
1951 SCC OnLine Bom 72 was required to be examined.
205.1. Interestingly, the petitioners before the Supreme Court who lay
challenge to the triple talaq [i.e. talaq-e-bidaat], as applicable to Sunnis,
were supported by the Union of India. One of the arguments that is noted by
the Court which was advocated by the Muslim Personal Law Board (and,
those, who supported the said argument) while resisting the petitions filed
before the Court was that because personal laws were beyond the pale of
fundamental rights, they could not be struck down, and therefore, the Court
should "fold its hands" and "send Muslim women and other women's
organizations back to the legislature, as according to them, if triple talaq is
to be removed as a measure of social welfare and reform under Article
25(2), the legislature alone should do so." Both the petitioner along with the
Union of India opposed this plea.
205.2. Ultimately, the Court held that triple talaq was manifestly arbitrary, in
the sense, that marital ties could be broken capriciously and whimsically by
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a Muslim man without any attempt at reconciliation.
205.3. The Court went on to hold that triple talaq [i.e. talaq-e-bidaat] was
violative of Article 14 of the Constitution. Accordingly, the Court declared
Section 2 of the Shariat Act void to the extent it recognized and enforced
triple talaq.
205.4. The argument advanced by Mr Sai Deepak that the Court only
declared triple talaq as unconstitutional and did not criminalise it and,
therefore, principles laid down in Shayara Bano's case will not apply to the
instant matters is completely untenable. The judgment etched out in great
detail the contours of Article 14 and in that context the court observed that
the "thread of reasonableness runs through the entire fundamental rights
Chapter. What is manifestly arbitrary is obviously unreasonable and being
contrary to the rule of law, would violate Article 14. ....." [See paragraph
230.]
205.5. Thus, merely because the consequential steps that should be taken
upon triple talaq being struck down were not up for consideration before the
court, would not have me conclude that the principles enunciated by the
court concerning Article 14 cannot be taken recourse to in the instant
matters.
206. The judgment in Kartar Singh v. State of Punjab, (1994) 3 SCC 569,
to my mind, has no relevance to the issue at hand. Kartar Singh dealt with
challenge laid in a bunch of petitions to various TADA Acts. The majority
judgment upheld the legislative competence of the Parliament to frame the
impugned laws. The Court also used the reading down tool [or should I say
filled the gap] and went on to hold that the word "abet" as defined in Section
2(1)(a) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [in
short "1987 Act"] being vague and imprecise would mean "actual
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knowledge or reason to believe" to bring the person within the ambit of the
definition. Inter alia, the Court also struck down Section 22 of the 1987 Act
on the ground that it violated Article 21 of the Constitution. Although, the
intervenors placed reliance on paragraph 130 of the judgment in which an
observation has been made that vague laws offend several important values
and that unlawful zones in law should be clearly marked out; in my opinion,
none of these observations has any bearing on the issue at hand.
207. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union
of India & Ors. (1985) 1 SCC 641, the Court was considering the tenability
of Section 32 petitions filed before it. The petitions assailed the imposition
of import duty on news print. The case set up by the petitioners was that
imposition of duty on news print which enjoyed total exemption till a
particular date, had a direct and crippling effect on freedom of speech and
expression guaranteed by the Constitution. The Court, ultimately, directed
the government to reexamine the issue and consider the extent to which
exemption ought to be granted in respect of news print imported in the
period subsequent to March 1, 1981; albeit, after taking into account
relevant matters.
207.1. In this context, certain other directions were also issued. Once again,
to my mind, this judgment does not advance the case of the intervenors. The
observations picked up from the judgment without reference to context can
lead to conclusions which are untenable in law.
208. The judgment rendered in State of Tamil Nadu & Ors. v. Ananthi
Ammal & Ors., (1995) 1 SCC 519, in my opinion only reiterates the well-
established principles enunciated by the Courts in various judgments
concerning Article 14 of the Constitution. The observations on which,
intervenors seek to rely are contained in paragraph 7 of the judgment. The
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court therein has merely observed that when a statute is challenged as being
violative of Article 14, it should be put to test on its own strength and
although aid of another statute on a similar subject could be taken, it can at
best be referred to indicate what is reasonable in a given context. One can
have no quarrel with the proposition that is sought to be propounded on
behalf of the intervenors based on observations made in paragraph 7 of the
judgment.
208.1. Both sides have referred to statutes to explain their point of view.
Complementary statutes can only aid the court in forensically examining a
provision and testing its tenability.
209. The issue that arose for consideration in Arvind Mohan Sinha v.
Amulya Kumar Biswas and Ors. 1974 (4) SCC 222 was whether the
Probation of Offenders Act, 1958 [in short "1958 Act"] would apply to the
respondents who were charged and convicted for possession of gold which
was liable to be confiscated under Section 111 of the Customs Act, 1962.
Thus, the court was called upon to rule whether the 1958 Act could apply to
the offences adverted to in the Customs Act and Part XII-A of the Defence
of India Rules, 1962. The Court held that there was no impediment in the
1958 Act being applied to the respondents. It is in this context that an
observation was made in paragraph 12 with regard to the different
punishments being meted out for similar offences. The observations made
therein also drew attention to aspects such as antecedents as also to the
physical and mental condition of the offenders, which, according to the
court, had to be borne in mind while applying the provisions of the 1958
Act.
209.1. The point to be noted is, in the instant matters, there is a complete
prohibition on triggering the criminal law qua one set of offenders on
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account of the presence of the MRE in the main provision. The question
concerning sentencing would arise, once, that prohibition is lifted.
210. To my mind, the case of Vidya Viswanathan v. Kartik Balakrishnan
2015 (15) SCC 21 has no applicability to the issue which arises for
consideration in the present case. This was a case where the Supreme Court
was called upon to rule on the issue as to whether mental cruelty could form
the basis for seeking a decree for divorce. The Court, sustained the High
Court judgment in the given set of facts and, thus, established that mental
cruelty could form the basis for seeking a decree for divorce.
210.1. In this case, divorce was sought by the husband.
210.2. Mr Kapoor sought to rely upon the observations made in paragraph 12
of the judgment. The observations made in paragraph 12 allude to the
proposition that denial of sexual intercourse could amount to mental cruelty.
The issue at hand is entirely different. We are dealing with a question as to
whether a husband can seek sexual communion with his wife without her
consent and/or her willingness. The judgment, in my opinion, has no
application to the instant matters.
211. In the case of Sant Lal Bharti v. State of Punjab, (1988) 1 SCC 366,
the Supreme Court was called upon to rule whether the judgment of the
High Court ought to be sustained since it had dismissed in limine the
appellant's writ petition. The Court noted that the petition lacked material
particulars and, therefore, it was not inclined to interfere with the judgment
of the High Court. It appears what was assailed before the High Court,
albeit, without setting out material particulars, was the vires of Section 4 of
the East Punjab Urban Rent Restriction Act, 1949.
211.1. It is in this context that the Court had made the observations that
Article 14 does not authorize striking down a statute of one State by
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comparing a statute of another State on the same subject and, thus,
establishing that the impugned statute was discriminatory. A close look at
the observations made in the judgment would show that the appellant had
sought to advert to the Rent Acts of other States i.e., Assam, Tripura and
Haryana. Mr Kapoor has extrapolated this observation to contend that in
examining the viability of the impugned provisions, this Court cannot look
at the judgments and legislations of other jurisdictions on rape laws.
211.2. It is well accepted that Courts, while examining matters, take the aid
of judgments rendered by other Courts only to help them reach a correct
conclusion with regard to the impugned statute and/or provision. It is
important to remind ourselves that our Constitution is based on ideas and
provisions found in the Constitution of other countries such as the United
States, Canada and Australia, and, therefore, to even suggest that one cannot
look at views prevailing in other jurisdiction would be akin to an ostrich
burying its face in sand.
212. The issue which arose for consideration in H.P. Gupta & Anr. v.
Union of India & Ors (2002) 10 SCC 658 concerned grant of two advance
increments to Junior Telecom Officers in the Telecommunication
Department who acquired a degree in engineering while in service. Since the
appellants before the Court already possessed a degree in engineering, they
assailed the action of the respondents as being discriminatory. The Court,
did not entertain the challenge and while dismissing the appeal observed that
there cannot be "perfect equality" in any matter on an "absolute scientific
basis". It went on to hold that there could be certain inequities. In my view,
the observations made in the context of incentives granted to one set of
employees for attaining a higher qualification while in service cannot be
compared with the impairment of rights of married women who are exposed
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to a criminal offence. This submission, in my opinion, has resulted from a
complete misreading of the ratio of the judgment.
213. In Sushil Kumar Sharma v. Union of India & Ors., (2005) 6 SCC
281, the Supreme Court was dealing with an Article 32 petition which
sought a declaration to the effect that Section 498A of the IPC ought to be
declared unconstitutional. The Court repelled the challenge. The Court
observed that, if a provision of law is misused, it is for the legislature to
amend, modify or repeal the same. This observation and the ratio of the
judgment sustains the view that if MRE is struck down, its consequent
misuse, if any, as is apprehended by the intervenors can, first of all, as
indicated above, be dealt with by the Courts and, if deemed necessary, the
legislature could step in to carry out corrective measures.
214. Mr Kapoor has cited Vishaka to establish that legal vacuum, if any,
can only be filled by the Supreme Court by exercising powers under Article
142 of the Constitution. Once again, this is a proposition which one cannot
but agree with. The point which arises in the instant matters is not about
filling the legal vacuum but about doing away with the impugned provisions
which violate the fundamental rights of married women.
215. Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors.
(2009) 16 SCC 517 was cited by Mr Kapoor to support his submission that
this Court could make recommendations to the executive and/or the
legislature. In this context, observations made in paragraph 34 of the
judgment are relied upon. This aspect, in my view, is matter specific.
215.1. Interestingly, on the one hand, it is contended on behalf of the
intervenors that this Court should keep its hands off in respect of matters
concerning MRE, and, on the other hand, it calls upon the Court to make
recommendations. There is, if I may say so, some amount of incongruity in
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the submission.
216. The observations made by the Supreme Court in Sivasankaran v.
Santhimeenal 2021 SCC OnLine SC 702 concerning what constitutes a
marriage, once again, are facets with which one cannot quarrel. That said,
Mr Kapoor loses sight of the fact that the issue before us is whether the
edifice of marriage would survive once a woman is subjected to marital
rape.
217. The judgment in Amit Kumar v. Suman Beniwal 2021 SCC OnLine
SC 1270 is cited by Mr Kapoor to take forth his argument that there are
provisions available in other statutes such as HMA which can come to the
aid of the wife. There is no gainsaying, as noted above, that there are statutes
which provide for civil remedies for a married woman. However, as
adverted to above, there is no remedy in law available to a married woman
when she is subjected to rape by her husband.
XIII Summing up
218. Thus, if I were to capture how women view the subsisting inequity
which gets displayed daily in their relationship with men generally, I could
do no better than quote a short extract from an article contributed by Ms
Marya Manes titled "The Power Men Have over Women"63:
"The power men have over women is that they wear neckties, use
shaving cream and are usually bigger than we are. They are not
necessarily brighter, but they usually have us where they want us.
....
....But here we come, I think, to the old and lingering inequity
between the sexes. Everything in the long history of the male has
conspired toward his self-assurance as a superior being.
Everything in the long history of the female has conspired toward
her adaptability to him, whether as [a] wife, lover or mother. We
are bred to care for what he thinks, feels and needs more than he
[which forms part of a publication taken out by Reader's Digest Asia Ltd., HOW TO LIVE WITH LIFE,
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is for what we think, feel and need. There is no valid comparison
between a man's economic support of a woman and her hourly
involvement in caring for him. We worry more when he looks
seedy than he does when we do because we notice him more. We
worry more when he looks bored at a party than he does when we
do. (He doesn't see it, anyway.) We concern ourselves daily with
what he would like to eat, whom he would like to see, where he
would like to go..."
219. To sum up, the message that married women wish to convey to their
husbands, (and in this regard I can, once again, do no better than quote the
words used by late Ms Ruth Bader Ginsburg, former US Supreme Court
Judge, when appearing as an amicus in Sharron A. Frontiero and Joseph
Frontiero v. Elliot L. Richardson, Secretary of Defense, et al., 1973 SCC
OnLine US SC 10164, which, in turn, is attributed to Ms Sarah Moore
Grimke, an abolitionist and rights activist): "I ask no favour for my sex. All I
ask of our brethren is that they take their feet off our necks."
219.1. This in a sense typifies the agony of women living in the 21st century.
A journey of 300 years and more (since the time the Hale Doctrine was first
enunciated) has been excruciating in terms of individual freedom. From the
time when married women were considered as the property of the husband,
to the time when they shed that shackle but were still not considered as
individuals having a personality separate from their husbands, to the present
times when they appear to be emasculated of their right to say "yes" or "no"
to sexual communion with their husbands has been a journey marked by
intellectual battles fought by valiant women before various forums. The
sheer expanse of time should impel us to unshackle them and give them
agency over their bodies.
220. Before I conclude, I must state that I agree with the submissions made
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by Ms John and Ms Nundy that the legislature needs to address matters
concerning sentencing for the offence of rape. Their view, that a high
minimum mandatory sentence does not necessarily result in greater
conviction rates, needs to be examined by the concerned authorities, bearing
in mind the relevant data on the subject.
220.1. That said, on sentencing, the following view of the Court of Appeal of
New Zealand, needs to be captured.
"4.45 An example of a consistent approach to sentencing in a
jurisdiction where marital rape has become a crime is to be found in
the observations of the Court of Appeal of New Zealand in relation to
sentencing under section 2 of the Crimes Amendment Act (No. 3)
1985, which abolished the marital immunity. The court rejected the
suggestion that there should be a "separate regime of sentencing" for
rape in cases where the parties were married, and said -
"Parliament has made no distinction in the penalties between
spousal and other kinds of rape, and the sense of outrage and
violation experienced by a woman in that position can be
equally as severe...."65
[Emphasis is mine.]
221. It is evident, like in other foreign jurisdictions, the Executive may
have to provide sentencing guidelines for trial court judges to ensure greater
consistency. Likewise, I also tend to agree with the counsel for the
intervenors i.e., Messrs Sai Deepak and Kapoor that the law should be
gender-neutral. These are steps that are required to be taken by the
Legislature/the Executive.
222. Having noticed this, I agree with the submission of Mr Gonsalves and
Ms Nundy that reforms in this regard cannot be cited as an impediment in
the court striking down the MRE which otherwise does not pass muster, as
discussed above, of our constitutional provisions i.e., Articles 14, 15,
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19(1)(a) and 21. These are the next steps in the matter which the legislature
has to take up. The court's jurisdiction to examine the matter is not tied-in
with these steps that the legislature may embark upon concerning sentencing
and how investigation is to progress in matters involving marital rape. As
and when such steps are taken, I am sure they will attract the public gaze
and attention of all stakeholders and if escalated to the court, may also
require judicial examination. However, these are not matters presently
within the ken of the court.
222.1. But before all this is done, a married woman's right to bring the
offending husband to justice needs to be recognized. This door needs to be
unlocked; the rest can follow. As a society, we have remained somnolent for
far too long. Deifying women has no meaning if they are not empowered.
They are our equal half; some would delightfully say our better half. It is
time that all stakeholders bite the bullet. It would be tragic if a married
woman's call for justice is not heard even after 162 years, since the
enactment of IPC. To my mind, self-assured and good men have nothing to
fear if this change is sustained. If I were to hazard a guess, those amongst us
who want status quo to continue would perhaps want to have the MRE
struck down if the victim involved was his/her mother, sister or daughter.
223. As noticed right at the outset, the issue at hand raises concerns of
enormous public importance, which has, both, legal and social connotations.
This is demonstrable from the fact that it has already received the attention
of different High Courts. [See the decision of the learned Single Judge of the
Gujarat High Court in Nimeshbhai Bharatbhai and the Karnataka High
Court in Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar
371.] Therefore, in my view, since the issue involves is a substantial
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question of general importance concerning fundamental rights of a large
number of married women, it necessitates a decision by the Supreme Court.
[See Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.,
1962 Supp (3) SCR 549 and State Bank of India v. S.B.I. Employees'
Union, (1987) 4 SCC 370.]
224. As would be evident from above, I have not adverted to the
submissions of the respondents i.e., UOI and GNCTD. Insofar as UOI is
concerned, Mr Tushar Mehta, learned Solicitor General stated before us in
no uncertain terms that UOI does not wish to take a stand in the matter. In
fact, affidavit(s) were filed to the effect that UOI would like to engage in
consultation before moving further in the matter. On the other hand, while
submissions were made at length by Ms Nandita Rao, who represented the
GNCTD; on the last day, on instructions, she stated that she wished to
withdraw the submissions which were made by her, in the course of the
hearing, on behalf of GNCTD. Therefore, practically, the state made no case
for or against the continuance of the impugned provisions on the statute.
225. That being said, the debate that ensued among the remaining counsel
was rich, passionate and engaging; it would have been richer had Mr Mehta
i.e., learned Solicitor General assisted the court in the matter.
225.1. I must place on record my deep appreciation for Mr Gonsalves, Mr
Sai Deepak, Mr Kapoor, Ms Nundy and the two amicus curiae who
appeared in the matter i.e., Ms John and Mr Rao. The wealth of material that
they placed before us in the form of reports and judgments helped me in
finding what I believe is the right conclusion in the matter. Regrettably, I
was not able to persuade Hon'ble Mr Justice C. Hari Shankar to my point of
view. He, perhaps, hears a beat of a different drummer. I respect that.
225.2. To the petitioners' and their ilk I would say it may seem that you
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plough a lonely furrow today but it will change, if not now, some day. To
the naysayers I would say that every dissent adds flavour and acuteness to
the debate at hand, which assists the next court, if nothing else, in arriving at
a conclusion which is closer to justice and truth.
Conclusion
226. For the foregoing reasons, I declare and hold :
(i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE)
and Section 376B of the IPC as also Section 198B of the Code], insofar as
they concern a husband/separated husband having sexual
communion/intercourse with his wife (who is not under 18 years of age),
albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21
of the Constitution and, hence, are struck down.
(ii) The aforesaid declaration would, however, operate from the date of
the decision.
(iii) The offending husbands do not fall within the ambit of the expression
"relative" contained in Section 376 (2)(f) of the IPC and, consequently, the
presumption created under Section 114A of the Evidence Act will not apply
to them.
(iv) Certificate of leave to appeal to the Supreme Court is granted under
Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the
issue involved in this case raises a substantial question of law which, in my
opinion, requires a decision by the Supreme Court.
(v) The writ petitions i.e., W.P.(C) Nos.284/2015; 5858/2017 and
6024/2017 are disposed of in the aforesaid terms. W.P.(Crl.)No.964/2017 is
kept apart and will be listed by the Registry for appropriate orders on
26.08.2022.
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(vi) Parties will bear their respective costs.
(RAJIV SHAKDHER)
JUDGE
MAY 11, 2022/aj
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$~
* IN THE HIGH COURT OF DELHI AT NEW ELHI
Reserved on: 21st February, 2022
Decided on: 11th May, 2022
+ W.P.(C) 284/2015 & CM Nos.54525-26/2018
RIT FOUNDATION ..... Petitioner
Through: Ms Karuna Nundy
with Mr Mukesh Sharma and
Mr Raghav Awasthy, Advs
versus
THE UNION OF INDIA ..... Respondent
Through: Mr Tushar Mehta,
SG and Mr Chetan Sharma,
ASG with Ms Monika Arora,
CGSC along with Mr Vinay
Yadav, Mr Amit Gupta, Mr
Akshya Gadeock, Mr Rishav
Dubey, Mr Rajat Nair, Mr
Sahaj Garg and Mr R.V.
Prabhat, Advs. for UOI.
Mr Rajshekhar Rao, Sr.
Advocate/Amicus Curiae with
Mr Karthik Sundar, Ms Mansi
Sood and Ms Sonal Sarda,
Advs. Ms Rebecca M. John, Sr.
Adv. As Amicus Curiae with
Mr Harsh Bora, Ms Praavita
Kashyap, Mr Chinmay Kanojia,
Mr Pravir Singh and Ms Adya
R. Luthra, Advs. Mr Amit
Lakhani and Mr Ritwik Bisaria
as Intervenors for Men's
Welfare Trust
Signature valid
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By:SUNIL SINGH NEGI
Signing Date:11.05.2022
18:14:04
+ W.P.(C) 5858/2017 & CM No.45279/2021
KHUSBOO SAIFI .... Petitioner
Through: Ms. Sneha Mukherjee and
Ms Mugdha, Advs.
versus
THE UNION OF INDIA & ANR .... Respondent
Through Mr Ruchir Mishra, Mr
Sanjiv Kumar Saxena, Mr Mukesh
Kumar Tiwari and Mr Ramneek
Mishra, Advs. for UOI. Mr Gautam
Narayan, ASC, GNCTD with Ms
Nikita Pancholi, Adv. Mr Rajshekhar
Rao, Sr. Advocate/Amicus Curiae
with Mr Karthik Sundar, Ms Mansi
Sood and Ms Sonal Sarda, Advocates.
Ms Rebecca M. John, Sr. Adv. As
Amicus Curiae with Mr Harsh Bora,
Ms Praavita Kashyap, Mr Chinmay
Kanojia, Mr Pravir Singh and Ms
Adya R. Luthra, Advs.
Mr R.K. Kapoor, Advocate for
applicant in CM 19948/2016.
+ W.P.(C) 6024/2017
ALL INDIA DEMOCRATIC WOMEN'S ASSOCIATION
....Petitioner
Through : Ms. Karuna Nundy, Ms
Ruchira Goel, Mr. Rahul Narayan, Mr
Nitish Chaudhary, Ms Ragini Nagpal,
Ms Muskan Tibrewala, Mr Utsav
Mukherjee and Mr Shashwat Goel,
Advs.
versus
THE UNION OF INDIA ..... Respondent
Through: Mr Chetan Sharma, ASG
with Mr Anil Soni, CGSC along with
Mr Devesh Dubey, Mr Vinay Yadav,
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By:SUNIL SINGH NEGI
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18:14:04
Mr Amit Gupta, Mr Akshya Gadeock,
Mr Rishav Dubey, Mr Sahaj Garg and
Mr R.V. Prabhat, Advs. for UOI. Mr.
Rajshekhar Rao, Sr. Advocate/Amicus
Curiae with Mr Karthik Sundar, Ms
Mansi Sood and Ms Sonal Sarda,
Advocates.
+ W.P.(CRL) 964/2017
FARHAN .... Petitioner
Through Sahil Malik, Adv.
versus
STATE & ANR ..... Respondent
Through: Ms Nandita Rao,
ASC for State. Mr Rajshekhar
Rao, Sr.Advocate/Amicus
Curiae with Mr Karthik Sundar,
Ms Mansi Sood and Ms Sonal
Sarda, Advocates. Ms Rebecca
M. John, Sr. Adv. As Amicus
Curiae with Mr Harsh Bora, Ms
Praavita Kashyap, Mr Chinmay
Kanojia, Mr Pravir Singh and
Ms Adya R. Luthra, Advs.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE C. HARI SHANKAR
% JUDGMENT
11.05.2022
(per C. HARI SHANKAR, J.)
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AN INDEXED VIEW OF THE JUDGEMENT
Para Nos
1 The challenge 4-5
2 My view, in précis 6-8
3 Legislative History of the impugned Exception 9-13
4 Post-Constitutional deliberations 14-19
5 Rival Submissions
5.1 Submissions of learned Counsel who opposed
the impugned Exception
5.1.1 Submissions of Ms Karuna Nundy 20-42
5.1.2 Submissions of Mr Colin Gonsalves 43-53
5.1.3 Submissions of Mr Rajshekhar Rao 54 - 64
5.1.4 Submissions of Ms Rebecca John 65-77
5.2 Submissions of learned Counsel who supported
the impugned Exception
5.2.1 Submissions of Mr J Sai Deepak 78- 92
5.2.2 Submissions of Mr R K Kapoor 93 - 96
6 Analysis
6.1 Preliminary Observations 97 - 106
6.2 Re. Article 14 107 - 112
6.2.1 The 'institution of marriage', and the intelligible 113 - 133
differentia that results
6.2.2 Re. the argument that the impugned Exception 134 -135A
creates "three classes of victims"
6.2.3 'Conjugal right' versus 'conjugal expectation' 136- 137
6.2.4 Is the impugned Exception arbitrary? 138 - 145
6.2.5 Another perspective 146 - 155
6.2.6 The approach of the Court 156 - 157
6.2.7 Consent and the 'effect doctrine' - Matrimonial 158 - 175
obligations
6.2.8 In the proverbial 'nutshell' 176- 178
6.4 Re. Article 21 181 - 186
6.5 The aspect of 'creation of an offence' 187 - 189
6.5.1 Independent Thought 190 - 208
6.5.2 The impact of Section 376(2)(f) and (n) 209 - 211
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6.6 Section 114A of the Indian Evidence Act, 1872 212-217
and its Significance
7 Other Submissions 218-219
9 Section 376B of the IPC and Section 198B of the 221-223
Cr PC
10 Conclusion 224-226
1. Having had the opportunity of poring through the illuminating
opinion of my noble and learned brother Rajiv Shakdher, J., I must
state, at the outset, that I cede place to none in my estimation of the
intellectual integrity of my brother; it remains a matter of lasting
regret, therefore, that our differences, regarding the outcome of these
proceedings, appear irreconcilable. That, however, remains one of the
travails of being a judge. One cannot compromise on one's
convictions even if it is to sail with the tide, howsoever compelling the
tide may be.
2. I am constrained, therefore, to place my dissenting views on
record. In my considered opinion, the challenge to the vires of the
second Exception to Section 375 and Section 376B of the Indian Penal
Code, 1860 ("the IPC"), and Section 198B of the Code of Criminal
Procedure, 1973 ("the Cr PC"), as raised in these petitions, must fail.
3. Arguments were principally advanced on the challenge to
Exception 2 to Section 375, and incidentally on the other provisions
under attack. I would, therefore, concentrate, mainly, on the former
challenge, and would address the latter towards the later part of this
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judgement.
The challenge
4. Section 375 of the IPC, the second Exception to which is the
subject matter of challenge, reads thus:
"375. Rape. - A man is said to commit "rape" if he -
(a) penetrates his penis, to any extent, into the
vagina, mouth, urethra or anus of a woman or makes
her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so
as to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so
with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of
a woman or makes her to do so with him or any other
person,
under the circumstances falling under any of the following
seven descriptions -
First. - Against her will.
Secondly. - Without her consent.
Thirdly. - With her consent, when her consent has
been obtained by putting her or any person in whom
she is interested, in fear of death or of hurt.
Fourthly. - With her consent, when the man knows
that he is not her husband and that her consent is given
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because she believes that he is another man to whom
she is or believes herself to be lawfully married.
Fifthly. - With her consent when, at the time of giving
such consent, by reason of unsoundness of mind or
intoxication or the administration by him personally or
through another of any stupefying or unwholesome
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly. - With or without her consent, when she is
under eighteen years of age.
Seventhly. - When she is unable to communicate
consent.
Explanation 1. - For the purposes of this section, "vagina"
shall also include labia majora.
Explanation 2. - Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form
of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist
to the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception 1. - A medical procedure or intervention shall not
constitute rape.
Exception 2. - Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years of
age, is not rape."
The words "not being under fifteen years of age" stand replaced, by
the judgement of the Supreme Court in Independent Thought v
U.O.I.1, with the words "not being under eighteen years of age". The
impugned Exception 2, therefore, effectively reads thus:
(2017) 10 SCC 800
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"Exception 2. - Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under eighteen years of
age, is not rape."
5. The issue at hand is fundamentally simple, as the principles for
invalidating a statutory provision as unconstitutional are trite and
well-recognized. They are, quite clearly, not res integra. All that the
Court has to do is to apply these principles to the impugned
Exception. A simple issue has, however, been made unreasonably
complex, and has occupied weeks of precious Court time, merely
because the issue was debated on the fundamentally erroneous
premise that the husband, in having sex with his wife without her
consent, commits rape, and the impugned Exception
unconstitutionally precludes his wife from prosecuting him therefor.
This presumption, as the discussion hereinafter would reveal,
completely obfuscates the actual issue in controversy.
In precis
6. I deem it appropriate at the outset, that I am one with the
learned Counsel for the petitioners that there can be no compromise
on sexual autonomy of women, or the right of a woman to sexual and
reproductive choice. Nor is a husband entitled, as of right, to have sex
with his wife, against her will or consent. Conjugal rights, as learned
Counsel for the petitioners correctly assert, end where bodily
autonomy begins. No Court can, in this day and age, lend its
imprimatur to any theory of a husband, by reason of marriage, being
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entitled, as a matter of right, to engage in sexual relations with his
wife, at his will and pleasure. Sexual activities between man and
woman, within or outside marriage, require, in legalspeak, consensus
ad idem.
7. Where I differ with learned Counsel for the petitioners and
learned amici curiae, is in the sequitur that they perceive as naturally
flowing from the wife's right to sexual and bodily autonomy. They
would submit that the only logical consequence of grant of complete
sexual autonomy to a woman, whether she be a wife or not, is
outlawing of the impugned Exception. On that, I am unable to agree.
The impugned Exception chooses to treat sex, and sexual acts, within
a surviving and subsisting marriage differently from sex and sexual
acts between a man and woman who are unmarried. It extends this
distinction to holding that, within marital sexual relations, no "rape",
as statutorily envisioned by Section 375, can be said to occur. I am
firmly of the view that, in thus treating sexual acts between a husband
and wife, whether consensual or non-consensual, differently from
non-consensual sexual acts between a man and woman not bound to
each other by marriage, the legislature cannot be said to have acted
unconstitutionally. The distinction in my view, is founded on an
intelligible differentia having a rational nexus to the object sought to
be achieved by the impugned Exception, which fulfils not only a legal
but also a laudatory object, and does not compromise any fundamental
rights guaranteed by Part III of the Constitution.
8. Viewed more empirically, it becomes clear that the petitioners
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seek merely to propound what, in their view, should be the law. The
written submissions filed by Ms Karuna Nundy, in fact, acknowledge
as much, by submitting that "an offence that should be rape, is
undermined by being treated it as cruelty, grievous hurt or any other
lesser offence ..." This single submission, in itself, indicates that the
petitioners are, proverbially, barking up the wrong legal tree. Other
learned Counsel, too, including Ms Rebecca John, with her enviable
knowledge of criminal law, have submitted that, while spousal sexual
violence is punishable under various other statutory provisions, they
are insufficient to punish what the petitioners feel is rape by the
husband of his wife. There is, however, not one iota of material to
which learned Counsel for the petitioners allude, to the effect that an
act of sex by a husband with his wife, against her consent is, legally,
rape. Nor is there any judicial pronouncement to the effect that every
act of non-consensual sex by man with woman is rape. Given this
position, I find it, frankly, astonishing that learned Counsel for the
petitioners, almost in one voice, castigated the impugned Exception as
unconstitutional because it "prevents a wife from prosecuting her
husband for committing rape". The closest learned Counsel for the
petitioners reach, in so seeking to contend, is in Ms Nundy's
submission that, post-Constitution, "the object of rape law (is that) no
man should be able to force a woman to have sex with him without
her consent". The submissions of Ms Nundy do not, however,
enlighten on the source of this "object of rape law", as she would seek
to submit. Equally may the object of rape law be stated as "non-
consensual sex by a woman, at the instance of a man who is not her
husband, should be punishable as rape". These are all, however,
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merely shots in the dark, which do not really aid at arriving at a
finding regarding the constitutionality of the impugned Exception.
Simply said, it is not open to anyone to contend that a statutory
provision is unconstitutional merely because it is not what he feels it
should be. De lege lata2 connotes the law that binds, not de lege
feranda3. Any legitimacy in the petitioners' claim, therefore, would
have to be urged before another forum, not before a writ Court
exercising jurisdiction under Article 226 of the Constitution of India.
Legislative history of the impugned Exception in Section 375
9. The IPC was enacted in 1860 by the Legislative Council of
India and was based on a draft Penal Code prepared in 1837 by Lord
Thomas B. Macaulay. Section 359 of the draft Penal Code which,
later, was transmogrified into Section 375 of the IPC, read as under:
"OF RAPE
359. Rape. - A man is said to commit "rape" who, except
in the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the 5
following descriptions:
First. - Against her will.
Secondly. - Without her consent, while she is
insensible.
Thirdly. - With her consent, when her consent has
been obtained by putting her in fear of death, or of
hurt.
Fourthly - With her consent, when the man knows that
2 "The law as it is".
3 "The law as it should be"
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her consent is given because she believes that he is a
different man to whom she is or believes herself to be
married.
Fifthly. - With or without her consent, when she is
under 9 years of age.
Explanation. - Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
Exception. - Sexual intercourse by a man with his own wife is
in no case rape."
10. Note B in the Notes on Clauses to the draft Penal Code dealt
with the General Exceptions provided thereunder, and read thus:
"NOTE B.
ON THE CHAPTER OF GENERAL EXCEPTIONS.
This chapter has been framed in order to obviate the
necessity of repeating in a very penal clause a considerable
number of limitations.
Some limitations relate only to a single provision, or to
a very small class of provisions. Thus the exception in favour
of true imputations on character (clause 470) is an exception
which belongs wholly to the law of defamation, and does not
affect any other part of the Code. The exception in favour of
the conjugal rights of the husband (clause 359) is an
exception which belongs wholly to the law of rape, and does
not affect any other part of the Code. Every such exception
evidently ought to be appended to the rule which it is
intended to modify."
11. The Indian Law Commissioners thereafter deliberated on the
draft Penal Code and presented the "First Report on Penal Laws,
1844". Ms Rebecca John, learned amicus curiae, has provided extracts
from the said Report which, however, essentially debate the
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advisability of the age of 9 years envisaged in the draft Code. They do
not reflect any deliberation on the Exception to Clause 359 which,
later, metamorphosed into the impugned Exception in Section 375.
12. Consequent to these deliberations, the IPC was enacted in 1860.
Section 375, as originally enacted, read thus:
"375. Rape. - A man is said to commit "rape", who, except
in the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the 5
following descriptions:
First. - Against her will.
Secondly. - Without her consent, while she is
insensible.
Thirdly. - With her consent, when her consent has
been obtained by putting her in fear of death, or of
hurt.
Fourthly - With her consent, when the man knows that
her consent is given because she believes that he is a
different man to whom she is or believes herself to be
married.
Fifthly. - With or without her consent, when she is
under ten years of age.
Explanation. - Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
Exception. - Sexual intercourse by a man with his own wife,
the wife not being under 10 years of age, is in no case rape."
Clause 359 of the draft Penal Code was, therefore, adopted, as it was
proposed, as Section 375 of the IPC, the sole modification being that
the age of 9 years, envisaged in clause "Fifthly" in Clause 359 was
enhanced to 10 years in Clause "Fifthly" in Section 375, and a similar
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stipulation, to the effect that the wife should not be under 10 years of
age, was inserted in the Exception.
13. It is important to note, at this juncture, that there is nothing to
indicate that the "marital exception to rape", contained in the
Exception to Section 375 of the IPC, or even in the proposed
Exception in Clause 359 of the draft Penal Code, was predicated on
the "Hale dictum", which refers to the following 1736 articulation, by
Sir Matthew Hale:
"The husband cannot be guilty of rape committed by himself
upon his lawful wife, for by their mutual matrimonial consent
and contract the wife hath given herself up in this kind unto
her husband, which she cannot retract."
Repeated allusion was made, by learned Counsel for the petitioners, to
the Hale dictum. There can be no manner of doubt that this dictum is
anachronistic in the extreme, and cannot sustain constitutional, or
even legal, scrutiny, given the evolution of thought with the passage
of time since the day it was rendered. To my mind, however, this
aspect is completely irrelevant, as the Hale dictum does not appear to
have been the raison d'etre either of Section 359 of the draft Penal
Code or Section 375 of the IPC.
Post-Constitutional deliberations
14. The 42nd Report of the Law Commission of India ("the Law
Commission"), dealing with the IPC and submitted in June, 1971,
opined thus, with respect to the "marital exception to rape":
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"16.115 Exception- "rape" by husband
The exception in section 375 provides that sexual
intercourse by a man with his own wife, the wife not
being under 15 years of age, is not rape. The
punishment for statutory rape by the husband is the
same when the wife is under 12 years of age, but when
she is between 12 and 15 years of age, the punishment
is mind, being imprisonment up to 2 years, or fine, or
both. Naturally, the prosecution is for this offence are
very rare. We think it would be desirable to take this
offence altogether out of the ambit of section 375 and
not to call it rape even in the technical sense. The
punishment for the offence also may be provided in a
separate section.
Under the exception, husband cannot be guilty of
raping his wife, if she is above 15 years of age. This
exception fails to take note 1 special situation, namely,
when the husband and wife are living apart under a
decree of judicial separation or by mutual agreement.
In such a case, the marriage technically subsists, and if
the husband has sexual intercourse with her against her
will or without her consent, he cannot be charged with
the offence of rape. This does not appear to be right.
We consider that, in such circumstances, sexual
intercourse by a man with his wife without her consent
should be punishable as rape.
*****
16.117 Section 375 - revision recommended
In the light of the above discussion, section 375 may
be revised as follows: -
"375. Rape. - A man is said to commit rape of
a sexual intercourse with a woman, other than
his wife, -
(a) against her will; or
(b) without her consent; or
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(c) with her consent when it has been
obtained by putting her in fear of death
or of hurt, either to herself or to anyone
presenting the place; or
(d) With her consent, knowing that it
is given in the belief that he is her
husband.
Explanation I. - Penetration is sufficient to
constitute the sexual intercourse necessary to
the offence of rape.
Explanation II. - A woman living separately
from her husband under a decree of judicial
separation or by mutual agreement shall be
deemed not to be his wife for the purpose of this
section.
*****
16.119 Prohibition of intercourse by husband with child
wife - The separate section penalising sexual intercourse by a
man with his child wife may run as follows: -
"376A. Sexual intercourse with child wife. -
Whoever has sexual intercourse with his wife, the wife
being under 15 years of age, shall be punished -
(a) if she is under 12 years of age with
rigorous imprisonment for a term which may
extend to 7 years, and shall also be liable to
fine; and
(b) in any other case, with imprisonment of
either description for a term which may extend
to 2 years or with fine, or with both."
15. The issue of the impugned Exception was again debated in the
172nd Law Commission Report on "Review of Rape Laws", released
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in March 2000. Para 3.1.2.1 of the report, which addresses the issue,
read thus:
"3.1.2.1 Representatives of Sakshi wanted us to
recommend the deletion of the Exception, with which we are
unable to agree. Their reasoning runs thus: where a husband
because of some physical injury to his wife, he is punishable
under the appropriate offence and the fact that he is the
husband of the victim is not an extenuating circumstance
recognised by law; if so, there is no reason why concession
should be made in the matter of the offence of rape/sexual
assault whether wife happens to be above 15/16 years. We are
not satisfied that this Exception should be recommended to be
deleted since that may amount to excessive interference with
marital relationship."
(Emphasis supplied)
16. A Committee for proposing amendments to the criminal law was
constituted under the chairmanship of Hon'ble Mr. Justice J.S. Verma,
former Chief Justice of India, which has come to be known, popularly,
as the "Verma Committee". The Verma Committee, in its
recommendation dated 23rd January, 2013, recommended, in para 79
of its Report, thus:
"79. We, therefore, recommended that:
i. The exception for marital rape be removed.
ii. The law ought to specify that:
a. The marital or other relationship between
the perpetrator or victim is not a valid defence
against the crimes of rape or sexual violation;
b. The relationship between the accused
and the complainant is not relevant to the
enquiry into whether the complainant consented
to the sexual activity;
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c. The fact that the accused and victim are
married or in another intimate relationship may
not be regarded as a mitigating factor justifying
lower sentences or rape."
In arriving at these recommendations, the Verma Committee also
comments, at the outset of its Report on "Marital Rape", on the "Hale
doctrine". Thereafter, paras 73 to 78 of the Report deal with the
manner in which the marital exception to rape has been outlawed in
other jurisdictions.
17. The issue was thereafter deliberated on the floor of the House,
resulting in the 167th Report of the Department-Related Parliamentary
Standing Committee on Home Affairs" relating to the Criminal Law
(Amendment) Bill, 2012. Para 5.9.1 of the Report read as under:
"While discussing about Section 375, some Members felt that
the word 'rape' should be kept within the scope of sexual
assault. The Home Secretary clarified that there is a change of
terminology and the offence of 'rape' has been made wider.
Some Members also suggested that somewhere there should
be some room for wife to take up the issue of marital rape. It
was also felt that no one takes marriage so simple that she
will just go and complain blindly. Consent in marriage cannot
be consent for ever. However, several Members felt that the
marital rape has the potential of destroying the institution of
marriage. The Committee felt that if a woman is aggrieved by
the acts of a husband, there are other means of approaching
the court. In India, for ages, the family system has evolved
and it is moving forward. Family is able to resolve the
problems and there is also a provision under the law for
cruelty against women. It was, therefore, felt that if the
marital rape is brought under the law, the entire family
system will be under great stress and the Committee may
perhaps be doing more injustice."
(Emphasis supplied)
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18. The result was that, even while expanding the scope of "sexual
acts" which, if non-consensual, would amount to rape, the Criminal
Law (Amendment) Act, 2012, which came into effect from 3 rd
February, 2013, allowed the impugned Exception to remain
unscathed.
19. With that prefatory discussion, I proceed to the submissions
advanced at the Bar.
Rival Submissions
Submissions of learned Counsel who opposed the impugned
Exception
Submissions of Ms Karuna Nundy, learned Counsel for RIT
Foundation
20. Arguing for RIT Foundation, Ms. Nundy termed the challenge,
to the impugned Exception, to be "about respecting the right of a wife
to say no (or yes) to the husband's demand for sex and recognizing
that marriage is no longer a universal licence to ignore consent".
21. Extensive reliance was placed, by Ms. Nundy, on the judgement
of the Supreme Court in Independent Thought1 which, according to
her, was binding for a number of propositions relevant to the present
dispute and, in fact, was by itself sufficient to sustain the challenge.
Though, for want of a challenge to the impugned Exception before it
per se, the Supreme Court was constrained to restrict its
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pronouncement to the validity of the "below 15 years of age" caveat
in the Exception, she submits that "part of the ratio decidendi of
Independent Thought1 is squarely applicable to the constitutionality
of the whole of Exception 2 to Section 375". In order to demonstrate
the applicability of the judgement in Independent Thought1 to the
present controversy, Ms. Nundy has commended the "inversion test"
for interpretation of precedents for the consideration of the Court. To
explain this test, she cites State of Gujarat v. Utility Users Welfare4
and Nevada Properties Pvt Ltd v. State of Maharashtra5. Applying
the said test, Ms. Nundy, referring to specific paragraphs of
Independent Thought1 for each, submits that the decision is an
authority for the following propositions:
(a) A woman cannot be treated as a commodity having no
right to say no to sexual intercourse with her husband. (Para 64)
(b) Marriage to the victim does not make a rapist and non-
rapist. (Para 73)
(c) The impugned Exception creates an artificial distinction
between married and unmarried women. (Para 77)
(d) The woman is not subordinate to and/or property of her
husband. (Para 82)
(e) The impugned Exception is discriminatory as it creates
(2018) 6 SCC 21
(2019) 20 SCC 119
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anomalous situations where the husband can be prosecuted for
lesser offences, but not rape. (Paras 77)
(f) Removing the marital rape exception will not create a
new offence since it already exists in the main part of the IPC.
(Paras 81 to 85)
(g) The view that criminalising marital rape would destroy
the institution of marriage is unacceptable, since marriage is not
institutional but personal. Nothing can destroy the 'institution'
of marriage except a statute that makes marriage illegal and
punishable. (Para 90)
Reversing of each of these propositions would have resulted in
Independent Thought1 not arriving at the conclusions at which it
arrived; ergo, submits Ms. Nundy, the judgement is an authority for
each of the said propositions.
22. Pre-constitutional legislations, submits Ms. Nundy, are not
entitled to any presumption of constitutionality, even if they have been
continued by Parliament post-independence, for which purpose she
relies on Joseph Shine v. U.O.I.6 and Navtej Johar v. U.O.I.7.
Viewed in the light of the law expounded in these decisions, Ms
Nundy submits that the inaction of Parliament in removing the
impugned Exception from Section 375, despite the Verma
(2019) 3 SCC 39
(2018) 10 SCC 1
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Commission report is merely a "neutral fact".
23. Ms Nundy emphatically contends that Article 13 of the
Constitution obligates every Court to strike down a provision which is
found to be unconstitutional, for which purpose she relies on
Independent Thought1 and Peerless General Finance v. R.B.I.8. The
petitioners, she submits, seek extension, to the fundamental right of
wife against forced sexual intercourse by their husbands, the full
protection of the law, by labelling the offence as one of rape.
24. Ms Nundy contends, further, that the impugned Exception to
Section 375 and Section 376B of the IPC and Section 198B of the
Criminal Procedure Code, 1973 (the "Cr PC") violate Article 14 of the
Constitution. Article 14, she submits, is infracted by a statute not only
if it is discriminatory, but also if it is manifestly arbitrary. Arguments
in support of retention of the impugned Exception, according to her,
"crib, cabin and confine" the true meaning and scope of Article 14.
The mere existence of an intelligible differentia is not sufficient to
sustain the scrutiny of Article 14, she submits; the intelligible
differentia is also required to have a rational nexus to the object of the
statute, which itself must be legitimate. Furthering the argument of
arbitrariness, Ms Nundy submits that, as the impugned Exception
"provides immunity from prosecution for rape to a man for forcibly
having sex with his wife, but not to a man forcibly having sex with a
woman who is not his wife (but may, for instance be his live-in
partner)", it is irrational and manifestly arbitrary. Equally arbitrary,
(2020) 18 SCC 625
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she submits, would be any decision not to efface the impugned
Exception in order to protect the "institution" of marriage, as the
sanctity of an "institution" can never be accorded prominence over the
rights of the individuals involved. Any such prominence, if accorded,
would also reflect arbitrariness. She submits that, as the purported
rationale of the impugned Exception has outlived its purpose, and
does not square with constitutional morality as it exists, it is
manifestly arbitrary. She relies, in this context, on para 102 of the
report in Joseph Shine6. Referring to paras 168, 169 and 181 of the
said decision, Ms. Nundy submits that any provision of law that
postulates a notion of marriage that subverts equality is manifestly
arbitrary and bad in law. She points out that, in para 181 of the said
decision, the Supreme Court had rejected the notion that, by marriage,
a woman consents in advance to sexual relations with her husband,
terming such a notion to be offensive to liberty and dignity, and
having no place in the constitutional order. She submits that the
impugned Exception traces its origin to Lord Hale's anachronistic
notion that, by marriage, a woman surrenders her sexual autonomy.
She submits that "it is difficult to discern any argument in relation to
marriage that does not have its basis in the said dictum". "Protecting
the institution of marriage", she submits, is not an adequate
determining principle and had, in fact, been specifically rejected by
the Supreme Court in para 74 of Independent Thought1 and para 212
of Joseph Shine6.
25. Ms. Nundy concedes that "there can be no doubt that there is an
intelligible differentia between married, separated and unmarried
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persons in all manner of laws that meets Article 14". She cites, for
example, spousal privilege, conferred by Section 1229 of the Indian
Evidence Act, 1872 (the "Evidence Act"). Proceeding, however, to the
issue of whether the said intelligible differentia has a rational nexus
with the object sought to be achieved by the impugned Exception, Ms.
Nundy submits that, before reflecting on the existence, or otherwise,
of a rational nexus, the constitutionality of the object of the impugned
Exception has to be examined. Relying on para 26 of the report in
Nagpur Improvement Trust v. Vithal Rao10 and para 58 of the report
in Subramaniam Swamy v. C.B.I.11, Ms. Nundy submits that an
unconstitutional object invalidates the statute enacted on its basis as
well.
26. Ms. Nundy then proceeds to advance submissions regarding the
"pre-constitutional object" and the "post constitutional object" of the
impugned Exception. The pre-Constitutional object, she submits, as
per the notes of Lord Macaulay in the 1838, was the creation of an
exception in favour of the conjugal rights of the husband. In this
context, she draws attention to para 36 of the report in John
Vallamattom v. U.O.I.12, which recognised the possibility of a
provision which, though not unconstitutional on the day of its
enactment or on the date when the Constitution came into force,
becoming unconstitutional with the passage of time. In this context,
9122. Communications during marriage. - No person who is or has been married shall be compelled to
disclose any communication made to him during marriage by any person to whom he is or has been married;
nor shall he be permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or proceedings in which one
married person is prosecuted for any crime committed against the other.
10(1973) 1 SCC 500
(2014) 8 SCC 682
(2003) 6 SCC 611
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the Supreme Court has held that it would "be immoral to discriminate
a woman on the ground of sex". The post-Constitutional amendments
to Section 375 of the IPC, points out Ms. Nundy, indicate the object of
rape laws to be protection of women from violence and preservation
of their bodily integrity and sexual autonomy. "Inherent in this
object", she submits, "is the foregrounding of the entire law on
consent". Based on this premise, Ms. Nundy contends that the object
of rape laws, post-Constitution, is that "no man should be able to force
a woman to have sex with him without her consent". Proceeding from
this submission, Ms. Nundy contends that the impugned Exception is
unconstitutional as (i) it nullifies the object of the main provision, i.e.,
the object of rape laws, (ii) it places the privacy of marriage as an
object above the privacy of the individual in the marriage and (iii)
protection of conjugal rights, by not penalising as rape the forced sex
of a wife, is not a legitimate object post Constitution, as it does not
align with our post-Constitutional understanding of conjugal rights.
27. Ms. Nundy then proceeds to elaborate on each of these
submissions. Regarding the first submission, i.e., that the impugned
Exception nullifies the object of rape laws, she relies on the principle
that an exception or a proviso cannot nullify or set at naught the real
object of the main enactment, for which she relies on S. Sundaram
Pillai v. V.R. Pattabiraman13 and Director of Education v.
Pushpendra Kumar14. The alleged object of the impugned Exception,
she submits, of protection of conjugal rights and protection of the
institution of marriage, would nullify the object of Section 375, of
(1985) 1 SCC 591
(1998) 5 SCC 192
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criminalising rape. The impugned Exception, she submits, is
unconstitutional as it "places the 'institution of marriage' as an object
above the privacy and other Article 21 rights of an 'individual in the
marriage' ". Protection of the 'institution of marriage', submits Ms.
Nundy, cannot be a legitimate object to sustain the impugned
Exception, such a contention having been specifically rejected by the
Supreme Court in para 92 of the report in Independent Thought1. The
institution of marriage cannot, according to her, be accorded pre-
eminence over the Article 21 rights of the wife. Even on facts, she
submits, a marriage could be damaged or destroyed by rape, but not
by a complaint of rape. According to her submissions, "an
individual's right not to be raped cannot be held hostage to an
imposed conception of marriage". Ms. Nundy relies on para 192 of
the report in Joseph Shine6 to contend that privacy accorded to the
'institution' of marriage cannot override the privacy and other Article
21 rights of the individuals involved.
28. Protection of the conjugal rights of the husband, contends Ms.
Nundy, is not a legitimate object to justify the impugned Exception in
our post-Constitution era, as it does not align with our understanding
of conjugal rights at present. Forced sexual intercourse, she submits,
is not a conjugal right, as is apparent from the fact that a Court, when
enforcing a decree for restitution of conjugal rights, can only direct the
husband and wife to cohabit, and cannot forcibly direct them to have
sexual intercourse. Sexual intercourse is not, therefore, a "conjugal
right" of the husband. Conjugal rights, in her submission, begin and
end at cohabitation and consortium, and anything beyond this is
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merely a conjugal expectation, the remedy for denial of which is only
divorce.
29. Further exemplifying the submission, Ms. Nundy contends that
"by no means can insertion of an object, against the woman's will, or
facilitating the rape of his wife by other persons, be a 'conjugal right'
throwing in sharp relief the illegitimacy of the object". Husbands who
indulge in such acts, she points out, stand exempted from the
application of Section 375 by the impugned Exception. According to
Ms. Nundy, "if a wife refuses to consent to sexual intercourse with her
husband, the (impugned Exception) sanctions and indeed encourages
the husband to have forced sexual intercourse with his wife". Such
forced sexual intercourse by the husband becomes punishable only if
the ingredients of lesser offences such as Section 35415, or of related
but distinct offences such as Section 498-A16 of the IPC are fulfilled.
By virtue of the "marital rape exception", therefore, "a husband can
enforce his conjugal right (as he understands it) without going to a
court of law." This, in her submission "encourages some husbands to
do illegally that which cannot be done legally, on the purport that they
are exercising their conjugal right". This submission is taken further
15354. Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or
uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage
her modesty, shall be punished with imprisonment of either description for a term which shall not be less than
one year but which may extend to five years, and shall also be liable to fine.
498-A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation. --For the purposes of this section, "cruelty" means -
(a) any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether mental
or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her
or any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.
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by contending that "allowing a husband to enforce his conjugal
expectation to sex by permitting him to have forced sexual intercourse
with his wife without penal consequences under Section 376 IPC 17, is
akin to saying that a wife, who believes that she is entitled to
maintenance from her husband, is permitted to sell her husband's
personal belongings in property, without his consent, and appropriate
the proceeds towards her maintenance". The only legitimate object of
376. Punishment for rape. -
(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be
punished with rigorous imprisonment of either description for a term which 383[shall not be less
than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
(2) Whoever, -
(a) being a police officer, commits rape -
(i) within the limits of the police station to which such police
officer is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the
custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public
servant's custody or in the custody of a public servant subordinate to such
public servant; or
(c) being a member of the armed forces deployed in an area by the
Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or
other place of custody established by or under any law for the time being in
force or of a women's or children's institution, commits rape on any inmate of
such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape
on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of
trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits
rape on such woman; or
(l) commits rape on a woman suffering from mental or physical
disability; or
(m) while committing rape causes grievous bodily harm or maims or
disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life, which shall mean imprisonment for the remainder of
that person's natural life, and shall also be liable to fine."
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(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which may extend
to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural
life, and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to
the victim.
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anti-rape laws, submits Ms. Nundy, is the protection of bodily
integrity and sexual autonomy of women.
30. Ms. Nundy proceeds, thereafter, to address the issue of the
existence of an intelligible differentia, and its rational nexus with the
object sought to be achieved by the impugned Exception. She has
attempted to deal with the issue from the point of view of the
"perpetrator", the "victim" and "the act".
31. Apropos the "perpetrator", Ms. Nundy concedes, frankly, that
"there may be an expectation of, and even an in-principle arrangement
to, sex in marriage, and indeed an intelligible differentia on this basis
between a husband and non-husband". "However", she submits, "what
the (impugned Exception) in fact protects, is not this expectation of
sex, but elevates this to a husband's rights to forcible sexual
intercourse with his wife at any given time, under any circumstances,
irrespective of her consent to it". This, she submits, "has no rational
nexus to any of the objects examined above". She has highlighted, in
this context, para 75 of the report in Independent Thought1,
especially the observation, in the said para, that "a rapist remains a
rapist and marriage with the victim does not convert him into a non-
rapist" and "rape is rape whether it is described as such or is described
as penetrative sexual assault or aggravated penetrative sexual assault".
Thus, submits Ms. Nundy, "the Marital Rape Exception privileges a
man's right to exercise his sexual desire and nullifies his wife's right
to not engage in sexual acts".
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32. Ms. Nundy further submits that, "in rape, the spectrum of harm
caused may vary, and is independent of the relationship between the
parties". She has sought to exemplify this by contradistinguishing a
situation in which the live-in partner of a woman has sex with her
while she is sleeping, presuming consent, with a case in which the
husband of a woman, with his friends, gang rapes her. The inequity in
the impugned Exception, submits Mr. Nundy, is underscored by the
fact that, in the former case, the live-in partner of the woman could be
prosecuted for rape, whereas the husband, in the latter case, cannot.
33. Ms. Nundy further submits that the impugned Exception gives
husbands a blanket immunity for any of the sexual acts enumerated in
clauses (a) to (d) of Section 375, including the gross acts envisaged in
clauses (c) and (d) thereof. Even in a case in which the rape would
result in the victim being reduced to a permanent vegetative state, or
where the act involves gang rape, she submits that the impugned
Exception immunizes the husband from being prosecuted for rape.
She submits that, therefore, "the Marital Rape Exception effectively
nullifies consent to the specific act(s) of sexual intercourse including
forced sex with another person, forced anal sex, and bundles such
forced sexual acts with other, lesser offences such as cruelty, simple
assault or grievous assault".
34. The impugned Exception, submits Ms. Nundy, "gives a license
to husbands to force sex" and, "at the very least, condones a situation
where a man forces his wife to have sex by calling it 'not rape'."
"This", in her submission, "is nothing more than a license for a
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husband to force his wife into sexual intercourse without penal
consequences for rape (whether or not there are penal consequences
for the lesser, cognate offences)." Ms. Nundy emphasises that
marriage requires equality of partnership and love, and is inherently
inimical to the concept of forced, non-consensual sexual relations.
Even within the expectation or broad agreement of sexual relations
and marriage, therefore, she submits that specific consent for sexual
acts cannot be done away with. She seeks to exemplify this
submission, and to highlight the perceived inequity in the impugned
Exception, thus:
"Currently, without specific consent for sexual acts there is
sanction to situations where despite sickness, disease and
injury, a wife is still forced to have sexual intercourse. She
may object to having sex in public. Indeed, if the husband
suffers from gonorrhoea, or if the wife is on her period, is
busy at work, or just not in the mood, the Exception overrides
that non-consent and says such forced sex will not be 'rape'."
In this backdrop, Mr. Nundy emphasises that, even where consent was
not specifically to be found in the provision, the Supreme Court has
made consent central and indispensable to criminal provisions
concerning sexual relations, for which purpose she relies on Navtej
Johar7 and Joseph Shine6. Specifically, Ms. Nundy cites para 232 of
the report in Navtej Johar7 and para 169 of the report in Joseph
Shine6.
35. The necessity of fair labelling of the offence is, according to
Ms. Nundy, the core of the case that the petitioners seek to espouse. It
is no argument, according to Ms. Nundy, to contend that, when sexual
acts, offensive to the wife, are perpetrated by the husband, he can be
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prosecuted for grievous hurt, or for outraging her modesty. These
offences, along with their gravamen and ingredients, she submits, are
substantially different from rape. It would be impermissible to label an
act of rape as an act of cruelty or grievous hurt. The need to call a rape
a rape, she submits, is paramount. "The label of the offence,", she
submits, "should represent the nature of the law-breaking by the
offender". This, she submits, "is further represented in the defences,
punishments and consequences of being convicted of the offence".
Ms. Nundy relies on para 592 of the report in Navtej Johar7, in which
the Supreme Court observed that the effect of conviction under
Section 37718 of the IPC was typecasting consensual sex of
LGBTQIA+ persons on par with sexual offences like rape. Per
corollary, she submits, an offence which should be rape cannot be
permitted to be undermined by treating it as cruelty, grievous hurt or
any other lesser offence. She contends that "not calling a rape within
marriage, a rape, also has far-reaching consequences for the protection
of the victims". According to her, "when it comes to married women,
the State shirks responsibility and does not afford her the same level
of care and protection that a woman raped by someone other than her
husband is entitled to receive". "Women raped by their husbands do
not", in her submission, "get protections under the law available to
other rape victims" such as Section 357A (which provides for victim
compensation), 357C (which provides for treatment of rape victims),
154 (relating to providing of information in cognizable cases), 164
377. Unnatural offences. - Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Explanation. --Penetration is sufficient to constitute the carnal intercourse necessary to the offence described
in this section.
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(which sets out the procedure for recording of statements by the
Magistrate), 309 (dealing with postponing of proceedings), 327
(deeming the criminal court to be an open court) and 164A (which
deals with medical examination of the rape victim) of the Cr PC,
Section 228A (proscribing disclosure of identity of any victim of rape)
of the IPC and Section 146 (questions which may lawfully be asked in
cross-examination) of the Evidence Act. These provisions, she
submits, apply only where the accused is charged under Section 376
of the IPC. Adverting, once again, to her understanding of "fair
labelling", Ms. Nundy submits that "the label 'rape' has an important
role in expressing social disapproval of a certain sort of sexual
wrong". Further, on the point of punishability under other provisions,
of the act of a husband in compelling his wife into sexual intercourse
without her consent, Ms. Nundy submits that the said provisions
would apply only if their ingredients are fulfilled. The resultant
anomaly, according to her, is that the specific act committed by the
husband, the harm to his wife and indeed the mens rea to commit
forced sexual intercourse remain unpunished. The husband, who has
committed an act of forced sexual intercourse, she submits, ends up
being prosecuted under provisions that do not seek to regulate forced
sexual intercourse in the first place. On individual facts, she submits,
where the specific ingredients of other offences do not exist, the
victim-wife of an act of non-consensual sexual intercourse by the
husband may not be able to prosecute him at all, if the impugned
Exception is allowed to stay. At the end of the day, she submits, "it is
not about punishing the husband, but is about punishing the act".
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36. Ms. Nundy, thereafter, proceeds to submit that the impugned
Exception infracts Article 21 of the Constitution. She submits that
"the bodily integrity of women and indeed all humans, deserves the
highest threshold of protection under Constitutional and criminal
law". There should be no restriction whatsoever on the exercise of
reproductive choices such as a woman's right to refuse participation in
sexual activity. This right to physical integrity, she submits, flows
from the woman's right to life, dignity and bodily privacy under
Article 21.
37. Ms. Nundy submits that Article 15 of the Constitution obligates
the Court to strike down the impugned Exception, "which is founded
on a stereotypical understanding of ascribed gender roles in a
marriage", and "is coupled with an ex facie infringement of
fundamental rights". She submits that "there is no compelling state
interest in 'protecting the institution of marriage'", as the State would
seek to contend. "Protecting husbands who facilitate the gang rape of
their wives, or rape their wives by insertion of objects, or indeed have
forced penile vaginal intercourse with their wives cannot be a way to
further the institution of marriage or be called the 'conjugal rights' of
a husband."
38. The impugned Exception, she further submits, also infringes
Article 19(1)(a) of the Constitution and is, therefore, liable to be
struck down even under the said provision. The expression of one's
sexual desire, submits Ms. Nundy, is part of self-expression protected
under the said sub-Article. At its heart, she submits that the Marital
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Rape Exception fails to protect to the full extent of the law a woman's
non-consent. In her words,
"The impugned provisions of law do not recognise the right of
a married woman to say no to sexual intercourse with her
husband. As a corollary, the impugned provisions also take
away a married woman's ability to say a joyful 'Yes' to
sexual intercourse, both aspects of Exception 2 to Section 375
being contra Article 19(1)(a) and limiting a married woman's
right to freedom of sexual expression and behaviour".
In Ms. Nundy's submission, the offshoot of the impugned Exception
is that "the wives sexual desire and consent is reduced to nullity".
39. Addressing, thereafter, a substantially important issue, Ms.
Nundy submits that, by striking down the impugned Exception, the
Court would not be creating a new offence. Adverting to Section 40 of
the IPC19, Section 2(n) of the Cr PC20 and Section 3(38) of the
General Clauses Act, 189721, Ms. Nundy submits that an 'offence'
pivots on the act or omission, and not on the offender per se. What is
punishable by the IPC, she submits, is "the act or thing done", though
"the parts of an offence may include a perpetrator, victim and the act".
In her submission, "the 'offence' of rape under the IPC is the act of
forcible/non-consensual intercourse (as described in sub-clauses (a) to
(d) and Clauses firstly to sixthly), by a man upon a woman, which is
19 40. "Offence" - Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the
word "offence" denotes a thing made punishable by this Code.
2. Definitions. - In this Code, unless the context otherwise requires,--
***
(n) "offence" means any act or omission made punishable by any law for the time being in
force and includes any act in respect of which a complaint may be made under Section 20 of the
Cattle Trespass Act, 1871 (1 of 1871);
3. Definitions. - In this Act, and in all Central Acts and Regulations made after the commencement of
this Act, unless there is anything repugnant in the subject or context, -
*****
(38) "offence" shall mean any act or omission made punishable by any law for the time being
in force;
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entirely separate from the question of the relationship between the
perpetrator and victim of the act.". "Thus", she submits, "any act
falling within the ambit of the provision would constitute the offence
of rape". The Marital Rape Exception, she submits, "grants immunity
from prosecution to a particular class of offenders - i.e. husbands ...
which is rooted in the fiction of consent that India inherited from its
colonial masters". Thus, according to Ms. Nundy, striking down the
impugned Exception would not create a new offence, though a new
class of offenders may be brought into the ambit of an existing
offence. The impugned Exception, according to her, only provides an
immunity from being prosecuted for the act of rape, which is already
an offence in terms of Section 40 of the IPC. She relies, for this
proposition, on paras 83 to 87 of the report in Independent Thought1,
which held that, in rewriting the impugned Exception with respect to
the age of the wife, it was not creating a new offence, but was merely
creating a new class of offenders, as the act was already an offence in
the main part of Section 375 and in the Protection of Children from
Sexual Offences (POCSO) Act, 2012. In its judgement in Hiral P.
Harsora v. Kusum Narottamdas Harsora22, the Supreme Court, she
submits, "in effect created a whole new class of offenders by striking
down the words 'adult male' from Section 2(q)23 of the Protection of
Women from Domestic Violence Act, 2005, which defines the term
'respondents'". She has also relied, for this purpose, on the decisions
22(2016) 10 SCC 165
2. Definitions. - In this Act, unless the context otherwise requires,--
(q) "respondent" means any adult male person who is, or has been, in a domestic relationship
with the aggrieved person and against whom the aggrieved person has sought any relief under this
Act: Provided that an aggrieved wife or female living in a relationship in the nature of a marriage
may also file a complaint against a relative of the husband or the male partner.
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in Balram Kumawat v. U.O.I.24 and Devidas Ramachandra
Tuljapurkar v. State of Maharashtra25, specifically citing paras 4, 5,
23, 36, 37 and 40 of the former, and paras 108 and 141 of the latter
decision. She explains this submission thus:
"A combined reading of the judgements in Harsora22,
Devidas Ramachandra Tuljapurkar25 and Balram
Kumawat24 show that there is a difference between 'creation'
of a new offence (which may be an act of a positive nature),
versus the interpretation of the constituents of an existing
offence, which is the traditional 'negative' act of judicial
review. If while adjusting the Constitutional validity of a
provision, the Court finds that it is unconstitutional, it must
strike it down. If the corollary of striking it down is that a
class of offenders, who were earlier not included within the
ambit of a provision, may now be charged under that
provision: this is not the creation of a new offence, but only a
byproduct of the Court fulfilling his duty under Article 13....
What would amount to creating a new offence, would be if
the Court was asked to alter the main ingredients of the acts
constituting the offence itself."
This principle, she submits, has also been applied in the context of the
striking down of exemptions granted by taxing statutes, in which
context she cites paras 26 and 28 of the report in Motor General
Traders v. State of A.P.26 To highlight the mischief that would result
if any other interpretation were to be accepted, Ms. Nundy
hypothesises a situation in which the Exception to rape is not based on
the relationship of the perpetrator with the victim, but on the time at
which the act is committed. In such a situation, she submits that the
Exception would undoubtedly be unconstitutional, and liable to be
struck down, even if, thereby, the Court were to be creating an
offence, by rendering the act, even if committed during the earlier
24 (2003) 7 SCC 628
(2015) 6 SCC 1
(1984) 1 SCC 222
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"excepted" times, offensive. That, she submits, cannot be a ground to
refrain from striking down such an unconstitutional Exception.
40. Addressing, next, a submission, advanced in favour of retaining
the impugned Exception, that, were the impugned Exception to be
struck down, a husband would qualify as a "relative" for the purposes
of Section 376(2)(f) and would, therefore, result in the burden of proof
shifting to him to disprove the allegation of rape in view of Section
114-A27 of the Evidence Act, Ms. Nundy seeks to allay the
apprehension by contending that, in interpreting Section 376(2)(f), the
"mischief" rule of statutory interpretation should be applied. One of
the considerations, in applying the "mischief rule" is, according to her,
the position in law prior to the enactment of the said provision. As
Section 114A of the Evidence Act concerns only aggravated rape,
absent such aggravating factors, an offender under Section 375 would
not be subject to the rigour of the provisions of Section 376 which
deal with aggravated rape. Another reason why Section 376(2)(f)
would not apply to the husband, according to her, is because the word
"relative", in the said provision, courts accompany with the words
"guardian", "teacher" and "a person in a position of trust or
authority". It is only, therefore, where the accused is in a position of
power over the complainant, akin to a fiduciary trust, she submits, that
Section 376(2)(f) would apply. On the other hand, if the impugned
27 114-A. Presumption as to absence of consent in certain prosecution for rape. - In a prosecution for
rape under clause (a), clause (b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i),
clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of Section 376 of the Indian Penal
Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was
without the consent of the woman alleged to have been raped and such woman states in her evidence before
the court that she did not consent, the court shall presume that she did not consent.
Explanation. - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses
(a) to (d) of Section 375 of the Indian Penal Code (45 of 1860).
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Exception were to remain on the statute book, Ms. Nundy submits that
husbands could get away with committing several forms of heinous
and aggravated rape.
41. Concerns about the possibility of misuse of Section 375, were
the impugned Exception to be struck down, submits Ms. Nundy,
besides being unfounded, are irrelevant to the issue of its
constitutionality. She has referred to statistics to attempt to submit
that a very small proportion of marital rape cases are reported. That
apart, she relies on Government of A.P. v. G. Jaya Prasad Rao28and
Indira Jaising v. Supreme Court of India29 to contend that the
possibility of misuse cannot be a ground for regarding a provision to
be constitutionally fragile.
42. Equally irrelevant, according to Ms. Nundy, are concerns
regarding the "disproportionate" nature of the punishments envisaged
by Section 376, were the impugned Exception to be struck down.
Sentencing, she submits, is a matter of policy, regarding which there
is a clear proscription on legislation by Courts. Thus, the quantum,
the proportionality, or the disproportionality, of the minimum
sentence envisaged by Section 376 cannot be a factor which could
affect the decision of the Court concerned with the issue of
constitutionality of the impugned Exception. If the impugned
Exception fails to sustain constitutional scrutiny, she submits that it
cannot survive, irrespective of the punishment that it may thereby
entail, as prescribed in Section 376. That apart, she submits that the
(2007) 11 SCC 528
(2017) 2 SCC 362
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petitioners have constantly highlighted their concerns about the
disproportionately high sentences envisaged in Section 376. This
problem, she submits, however, would apply to all cases of rape and,
if the argument of the disproportionate nature of the sentence
envisaged by Section 376 is to be taken as a defence by votaries of the
impugned Exception, she submits that Section 375 would become
vulnerable to being struck down in its entirety. She reasserts the
essential position that "a rapist is a rapist irrespective of the
relationship with the victim". While "recognizing that sentencing for
rape (whether within or outside of marriage) must be proportionate to
the gravity of the offence, the perpetrator, harm caused to the victim
and other facts and circumstances of the case, and that the high
mandatory minimum sentence presently prescribed for the offence
may not meet such proportionality concerns", Ms. Nundy submits that
this concern cannot be a ground for refusing to strike down the
impugned Exception which, according to her, is ex facie
unconstitutional. Once the impugned Exception is struck down, she
submits that it would always be open to the Court to recommend to
Parliament to reconsider the issue of sentencing for rape.
Submissions of Mr Colin Gonsalves, learned Senior Counsel for
Khushboo Saifi
43. Interestingly, several of the submissions of Mr. Gonsalves mark
a departure from the submissions advanced by Ms. Nundy.
44. Mr. Colin Gonsalves placed extensive reliance on the position
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obtaining in foreign jurisdictions, particularly England and Wales,
Canada, South Africa, Australia, the US, Thailand, Nepal, France,
Germany, Belgium, Netherlands and Italy, and contended that the
marital rape exception no longer remained in most of the developed,
and indeed much of the developing world and that, therefore, it had
outlived its welcome in India as well. He has also invited attention to
the Justice Verma Committee, and the contents of its report, which
advocated eradication of the impugned Exception. He has further
invited attention to the large number of cases of marital rape which,
according to him, take place in the country, and how they escape
detection and punishment owing to the existence of the impugned
Exception. He has quoted, copiously, from Working Paper 116 of the
UK Law Commission (1991), which dealt with "Rape within
Marriage".
45. Mr. Gonsalves submits that the unconstitutionality of the
impugned Exception is ex facie apparent, for the reason that (i) it
exempts married men from the charge of rape of their wives, where
the husband insists on sex and engages in the act despite want of
consent from his wife, (ii) it arbitrarily distinguishes between married
and unmarried couples, and (iii) there is no rational nexus between the
object sought to be achieved and the provision, which creates a
demarcation between married and unmarried men, in so far as creating
an exception to offence as grave as rape, is concerned.
46. According to Mr. Gonsalves, in adjudicating on the
constitutionality of the impugned Exception, the Court should not be
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concerned with the exact meaning and amplitude of the concepts of
"consent" and "coercion". He has articulated this submission, in his
written note, thus:
"Some of the issues raised during these proceedings will be,
and can be, resolved only in the Trial Courts where facts
specific contests will bring enriched meaning to critical legal
issues particularly (1) the meaning of the word "coercion" and
(2) the meaning of "consent". This Court is not called upon
after noticing the well accepted definitions of these two
words, to thereafter proceed on the basis of various possible
scenarios to connect this exercise with the adjudication of
constitutionality. In what circumstances the conduct of the
husband would amount to coercion and in what circumstances
the conduct of the wife would amount to consent is not
required to be adjudicated in these proceedings at all. In fact
such an adjudication is impossible. It is only in the Trial
Court's way these two complex issues are debated on the
basis of evidence of the parties, that a clear picture will
emerge of how the law will recognise and deal with marital
rape."
47. Mr. Gonsalves further submits that this Court cannot desist
from dealing with the constitutionality of the impugned Exception on
the ground that it would be almost impossible for the woman to prove
marital rape, as it takes place in the confines of the household and in
private. He has also sought to respond to the argument that "for a
married couple there exists a presumption in favour of regular sex and
this is not so for rape cases outside marriage", which "gives the
husband a greater degree of laxity regarding consent when engaging in
sex with his wife". In response, Mr. Gonsalves cites State v. Pankaj
Chaudhary30, which holds that, even if it were to be assumed that the
prosecutrix was of easy virtue, she has a right to refuse to submit
30(2019) 11 SCC 575
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herself to sexual intercourse with anyone."
48. The manner in which this Court should proceed with examining
the issue of constitutionality of the impugned Exception is, according
to Mr. Gonsalves, the following:
"The High Court is only the institution of first instance. It
cannot solve all the problems in one go. It takes the 1st step
towards addressing the historic and extreme injustice that has
been done to married women for centuries by doing away
with the hateful Exception granting all husbands immunity in
respect of, what has been characterised as, the most heinous
crime. This is all that the High Court is called upon to do.
After this is done, Parliament will be called upon to apply its
collective mind as to how, if at all, the generic definition of
caution and the generic definition of consent is to be
elaborated by making law. It may also (regrettably) be called
upon to decide as to whether if at all, a lesser punishment
ought to be prescribed in the penal code, or whether the crime
of marital rape ought to be compound double and capable of
being settled between the couple. No part of this exercise is to
be done in these proceedings. In what circumstances the
husband's conduct would amount to coercion, and the wife's
conduct amounts to consent has been discussed during these
proceedings at length. They have enriched the discussion but
they are, nevertheless, being made in the wrong institution. It
is not within the adjudicating powers, rather the adjudicating
capacity of the Writ Court to conjure up myriad
circumstances of coercion and consent and bring such
determination within the ambit of a constitutional challenge to
a specific provision of the Code. Therefore, such submissions
in proceedings must happen later (after the Exception is
declared unconstitutional) and in a different forum."
49. Apropos the applicability of other provisions of the IPC, and
other penal statutes, to sex by the husband with his wife against her
consent or willingness, Mr. Gonsalves submits that it is not
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permissible to contend that, in marital rape cases, other provisions of
the IPC should be applied and not Section 375. "Punishment, in
criminal law", he submits, "is not limited to the sentence alone", but
"includes the stigmatising of the accused particularly when grave
social crimes are committed so that, as in this case, the accused will be
known and recognised as a rapist".
50. Possibility of misuse cannot, according to Mr. Gonsalves,
restrain the Court from declaring the impugned Exception as
unconstitutional, for which purpose he cites para 19 of the report in
Sushil Kumar Sharma v. U.O.I.31
51. Adverting, next, to the decision in Independent Thought1, Mr.
Gonsalves submits that the disclaimer, contained in the said decision,
clarifying that the Court had not made any observation with regard to
marital rape of a woman who was of 18 years of age or above, even
collaterally, cannot be regarded as binding on any authority which
seeks to rely on the said decision. In this context, he has submitted
thus:
"In the first instance it is not part of the adjudication process
at the delivery of the judgment for any court after concluding
the adjudication and writing the judgment to say that the
judgment would not operate as a precedent for whatever
reason. reasoning in the judgment and the operative part of
the order stand together as a whole and once delivered no
judge may say that the others may not follow it for whatever
reason. Once the judgment is delivered even with this caveat
it belongs to the world and cannot bind the hands of judges,
lawyers, members of the public as to its use. As to whether
the judgment is dependent on the facts and circumstances of
(2005) 6 SCC 281
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the case is for subsequent judges and others to determine what
they cannot be told in advance that the judgment cannot be
used in deciding other cases - that is for judges before whom
such cases come to decide. Such observations are therefore
not binding on any court or even coats subordinate to the
Supreme Court may not follow such observations because
they are not legitimate part of any judgment and outside the
sphere of adjudication."
Mr. Gonsalves is cited, in support of these submissions, the judgement
of the Supreme Court in Ramesh Bhavan Rathod v. Vishanbhai
Hirabhai Makwana32 and the decision of the High Court of Bombay
in D. Navinchandra& Co. v. U.O.I.33
52. Mr. Gonsalves submits that there is no such thing as
"expectation of sex" or "the right to have sex", absent consent of the
other party. The resurrection of such an expectation, he submits,
would amount to "resurrect the ghost of Lord Hale". Marriage, in Mr.
Gonsalves's submission, merely makes socially acceptable sex
between adults.
53. Mr. Gonsalves joins his colleagues in discrediting the
contention that, by striking down the impugned Exception, the Court
would be creating an offence. He submits that the offence of rape is
already in place, in Section 375 of the IPC. Striking down the
exception merely removes a "legislative block which prevents
husbands from being prosecuted even when the crime is committed.
All that the court is being called upon to do is to eliminate that block
by declaring that exemption to be unconstitutional under Article 14
(2021) 6 SCC 230
1989 (43) ELT 266
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and 21". He has endeavoured to articulate the contention "in another
way" by seeking to submit that, "with the coming into force of the
Constitution of India that legislative obstruction evaporates on its own
because drafting which gives the husband immunity from the heinous
crime of rape only on the basis of a marriage certificate is immediately
violative of 14 and 21 and is manifestly arbitrary". The impugned
Exception, therefore, in his submission, "dies with the coming into
force of the Constitution", and all that this Court is required to do in
the present case, is to "make a declaration for doing away even with
the formal existence of the Exception". In his submission, "this
horrific Exemption is already dead in the eyes of the Constitution, yet
continues to torment married women...". The crime of rape, which
"already exists, was kept on hold by an awful declaration of Common
Law made centuries ago". Mr. Gonsalves would contend that this
Court is required to release the crime from the hold of that "awful
declaration of Common Law". By doing so, he submits that "what
comes into force is the right to punish, not a new crime". There is,
therefore, "no new offence ... only a new and delightful right to
prosecute or to correct the injustices of the past".
Submissions of MrRajshekhar Rao, learned amicus curiae
54. Mr. Rajshekhar Rao, learned amicus, commenced by
highlighting the fundamentally inhuman nature of the act of rape, and
the indelible mark that the act imprints, not only on the physical form,
but also on the psyche, of the victim. (Needless to say, there can be
no dispute on this score.) Rape, he submits, violates a woman's right
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to equality, dignity and bodily integrity, personal and sexual
autonomy, bodily and decisional privacy and reproductive choices.
Inasmuch as the impugned Exception decriminalises non-consensual
sexual intercourse, when perpetrated by a husband upon his wife, he
submits that it is, ex facie, unconstitutional.
55. Mr. Rao, too, reiterates the aphorism, emphasised many times
over by Ms. Nundy, that a rape is a rape and a rapist remains a rapist.
The impugned Exception, he submits, "is "particularly egregious", as
it denies the wife the ability to prosecute her husband for the act of
'rape', whereas if the same act were perpetrated by any other male,
she would be entitled to do so". Such entitlement is available, he
points out, to all other women, including women perceived to be "of
easy virtue", and with whom sexual intercourse is, arguably, an
expectation, such as a sex worker. A sex worker, too, he submits, is
entitled to decline consent for sex and, if sex is forced on her without
her consent, to prosecute for rape. Denying such a right to a wife,
amounts to rendering the issue "of her consent, to sex, immaterial
inasmuch as she cannot prosecute a husband for having non-
consensual sexual intercourse with her, i.e., for the act of 'rape'." He
submits that "There can be no greater indignity that the law can heap
upon a woman than to deny her the right to prosecute for the violation
of her bodily integrity, privacy and dignity and that too at the hands of
her husband, who she would legitimately expect to receive love and
affection from and who would be expected to safeguard her interest".
56. Mr. Rao echoes the primary contention of all learned Counsel
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who have argued against the impugned Exception that the absence of
consent is the foundation of the offence of 'rape' under Section 375 of
the IPC. The impugned Exception, he submits, is based on the archaic
belief that the very act of marriage implies 'consent' by the wife for
sexual intercourse with the husband during the entire subsistence of
the marital bond, i.e. the Hale dictum, or at least till the parties
continue to cohabit. This notion, he submits, is outdated and obsolete,
insofar as it understands the concept of marriage, and the role of a
wife in it. Any such "presumption of consent", submits Mr. Rao, is
inconsistent with applicable law, which guarantees equal protection of
the law to married women, for which purpose he cites paras 73 to 75,
84 and 88 of Independent Thought1 and paras 62 to 63, 68 to 71 and
82 of ShayaraBano v. U.O.I.34.
57. Classification based on marital status, submits Mr. Rao, creates
an anomalous situation, giving married women lesser protection
against non-consensual sexual intercourse by their own husbands, as
against strangers. This also results in lesser protection for them than
is available to persons who are merely cohabiting or live-in partners.
This discrepancy is particularly stark when one considers that Sections
376(2)(f) and 376C of the IPC recognises that the act, if perpetrated
by a person in a position of trust, or in a fiduciary capacity, is more
egregious than if done by a stranger.
58. Preservation of the institution of marriage, submits Mr. Rao,
cannot justify retention of the impugned Exception. Mr. Rao, too,
(2017) 9 SCC 1
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points out, in this regard, that a decree for restitution of conjugal
rights cannot compel the parties to have sexual intercourse, but may
be enforced only by attachment of property, under Order XXI Rule 32
of the Code of Civil Procedure, 1980 (CPC). Non-consensual marital
intercourse reflects, he submits, what a marriage ought not to be.
While a marriage entails reasonable marital privileges for both
spouses, these reasonable expectations or privileges cannot be equated
with willingness or consent to sex, by default, in all situations. Mr.
Rao advances, in this context, a somewhat radical submission that
"marriage is no longer as sacred or sacrosanct as it was traditionally
considered to be and legislative provisions for divorce and judicial
separation support this conclusion". Procreation, he submits, is not
the only purpose of marital sexual intercourse, which is why a
marriage becomes voidable only in the event of impotence, rather than
sterility. The wife, he submits, also has an expectation of a healthy
sexual relationship from her spouse. Implicit in this is the
presumption of the consensual nature of the relationship. He submits
that the institution of marriage cannot be regarded as imperilled, even
were the impugned Exception to be struck down, as the husband is, in
the event of non-consensual sexual intercourse with his wife, liable to
be prosecuted for several other offences in relation to the said act, for
which purpose he cites para 92 of the report in Independent
Thought1. Referring to Joseph Shine6 and Independent Thought1,
Mr. Rao submits that Courts have struck down, and read down,
provisions pertaining to marriage, despite fears of breakdown of the
marital institution in such an event.
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59. Equally misconceived, in Mr. Rao's submission, are concerns
that, by striking down the impugned Exception, the Court would be
permitting interference in the private marital sphere, as such perceived
interference is already permissible for other offences applicable to
such a situation, such as Sections 354A to 354D, 319 and 339 of the
IPC. He also submits that the Court cannot hold its hands back, from
striking down the impugned Exception on the consideration of a
possibility of a lack of evidence in such cases, as the same evidentiary
yardstick, as applies to these provisions, would apply to non-
consensual marital intercourse.
60. The legislative unwillingness to recognise the act of rape, when
perpetrated by a husband upon his wife is, in Mr. Rao's submission,
an affront to the dignity of the wife, which violates her fundamental
right to life and liberty. Constitutional Courts are enjoined to strike
down any provision of the law which, in their perception, violate
fundamental rights, and this is rendered an imperative by Article 1335
read with Article 22636 of the Constitution of India. He also cites, for
13. Laws inconsistent with or in derogation of the fundamental rights -
(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of
such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred by
this Part and any law made in contravention of this clause shall, to the extent of the contravention,
be void
(3) In this article, unless the context otherwise requires law includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages having in the territory of India the force of
law; laws in force includes laws passed or made by Legislature or other competent authority in the
territory of India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation either at all or in
particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368 Right of Equality
36226. Power of High Courts to issue certain writs -
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari,
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this purpose, paras 122, 268, 467 and 601 of the report in Navtej
Johar7. The need to act upon this obligation is augmented, he
submits, where the legislature has been lethargic, despite multiple
recommendations being made by law commissions and other bodies,
to strike down the impugned Exception.
61. In deciding whether a provision of law is, or is not,
unconstitutional, Mr. Rao submits that the Court is required to
examine the effect of the legislation, and whether it creates "an
artificial distinction between different classes of persons", in which
context he cites paras 46 to 47 of Anuj Garg v. Hotel Association of
India37 .
62. Mr. Rao, too, submits that striking down of the impugned
Exception would not result in the creation of a new offence, but would
merely remove a legal fiction which has resulted in an exemption
which is discriminatory and unconstitutional. The act which would
become punishable as rape, thereby, is already punishable as other
offences under the IPC. He, therefore, submits that "no new
behaviour is being criminalised", for which purpose he cites paras 190
to 194 of Independent Thought1. As the decision to strike down the
provision, if taken, would operate prospectively, Article 20(1)38 of the
Constitution, too, would not be violated. He cites Hiral P. Harsora22
or any of them, for the enforcement of any of the rights conferred by Part III and for any other
purpose
37 (2008) 3 SCC 1
38 20. Protection in respect of conviction for offences
(1) No person shall be convicted of any offence except for violation of the law in force at the
time of the commission of the act charged as an offence, nor be subjected to a penalty greater than
that which might have been inflicted under the law in force at the time of the commission of the
offence
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as an instance in which the Court has, by striking down the provision,
removed the exemption granted to a class, and Mithu v. State of
Punjab39 as an instance in which the Court has, by doing so, removed
the differences in sentences for different classes. Judicial review of
legislation, on the anvil of fundamental rights, he submits, is
consistent with the doctrine of separation of powers, and not
inconsistent therewith. Mr. Rao emphasises the "wider ambit" of
Article 226 of the Constitution, vis-à-vis Article 3240.
63. Mr. Rao has referred us to decisions rendered by courts abroad,
which have removed the "marital exception to rape". He has provided
a tabular chart of such decisions. While acknowledging that the
applicable statutes, in the jurisdictions in the UK and in Nepal, did not
contain a provision akin to the impugned Exception, Mr Rao submits
that the statutory position applicable in the US, at the time of rendition
of the decision in People v. Liberta41contained a specific exception,
from the offence of rape, where the victim was one's wife. The view,
in the said decisions, that the marital rape exception was "repugnant
and illogical", "an abuse of human rights" and "simply unable to
withstand even the slightest scrutiny", he submits, applies, mutatis
mutandis, to the impugned Exception.
(1983) 2 SCC 277
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
(1984) 64 NY 2d 152
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64. Mr. Rao submits, finally, that the impugned Exception is in the
teeth of India's obligations under Articles 1, 2, 5 and 16 of the
Convention for Elimination of All forms of Discrimination against
Women (CEDAW), which especially envisages elimination of
discrimination against women in relation to marriage and repeal of
penal provisions constituting such discrimination. Courts were,
therefore, he submitted, bound to give effect to these obligations.
Submissions of Ms Rebecca John, amicus curiae
65. Ms Rebecca John submitted, with even greater fervour than Mr.
Rao, that the impugned Exception could not sustain for an instant. Ms
John acknowledged, at the outset, that the foundational basis for the
impugned Exception is marriage. She points out that Note B in the
Notes on Clauses in the chapter of General Exceptions in the draft
IPC, per Lord Macaulay, clarified that the impugned Exception was
"to protect the conjugal rights of the husband". Even prior to this
statement, Ms. John submits that "the common law position excluded
a wife's consent from the purview of the penal provision and its origin
is traceable to the common law doctrines of Coverture and Implied
Consent, under which the legal rights of a woman were subsumed by
her husband after marriage." These doctrines declared that, by
entering into marriage, a wife had granted irrevocable sexual consent
to her husband. Ms John has also taken us to the history of the
Marital Rape Exception.
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66. The impugned Exception, submits Ms. John, "necessarily
results in a complete and unequivocal disregard of the wife's right to
consent to sex within a marriage", and its "consequence ... is
therefore that a provision which otherwise criminalises sex without
the consent of the woman, exempts a husband from being prosecuted
simply because he is married to her". She relies on the judgement of
the Supreme Court in Justice K.S. Puttaswamy v. U.O.I.42 in which
Dr. Chandrachud, J., in his concurring opinion, holds that "the validity
of a law which infringes the fundamental rights has to be tested not
with reference to the object of State action but on the basis of its effect
on the guarantees of freedom". The impugned Exception, submits
Ms. John, leaves married woman remediless for an offence of rape
committed by her husband.
67. Ms John seeks to analogise the present case with Joseph
Shine6. In that case, she points out, the Supreme Court struck down
Section 49743 of the IPC and decriminalized adultery. The said
decision, she points out, holds that the proposition "that a woman, by
marriage consents in advance to sexual relations with her husband or
to refrain from sexual relations outside marriage without the
permission of her husband is offensive to liberty and dignity". As
such, she submits that the impugned Exception represents an
antiquated notion of marriage between unequals, contrary to the
modern concept of marriage, as elucidated in Joseph Shine6.
42(2017) 10 SCC 1
497. Adultery. - Whoever has sexual intercourse with a person who is and whom he knows or has
reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished
with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
In such case the wife shall not be punishable as an abettor.
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68. Supporting her colleagues, Ms. John also submits that the
removal of the impugned Exception would not lead to creation of a
new offence. She relies, for the purpose, on paras 190 and 194 of the
report in Independent Thought1 which, in turn, relied on the
judgement of the House of Lords in R v. R44, in which it was held that
the striking down of the marital rape exception "...is not the creation
of a new offence, it is the removal of a common law fiction which has
become anachronistic and offensive..."
69. Ms John has, thereafter, even while acknowledging that, for
atrocities or acts committed by a husband on his wife, the law
provides remedies under Sections 304B45, 30646, 37747 and 498A of
the IPC, Section 348 of the Dowry Prohibition Act, 1961, to which the
44(1991) UKHL 12
45304B. Dowry death. -
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called "dowry
death", and such husband or relative shall be deemed to have caused her death.
Explanation. - For the purpose of this sub-section, "dowry" shall have the same meaning
as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend to imprisonment for life.
46306. Abetment of suicide. - If any person commits suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.
47377. Unnatural offences. - Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.
Explanation. - Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this section.
483. Penalty for giving or taking dowry. -
(1) ] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry,
he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine
which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is
more]: --1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking
of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and
with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry,
whichever is more]\:" Provided that the Court may, for adequate and special reasons to be recorded in the
judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2) Nothing in sub-
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presumptions under Sections 113A49 and 113B50 of the Indian
Evidence Act apply, and Section 24 of the Preconception and Prenatal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, as
well as civil remedies under the Protection of Women from Domestic
Violence Act, 2005 ("the DV Act"), sought to submit that these
remedies do not address the issue of rape by a husband on his wife.
She points out that Section 498A of the IPC cannot be used to
prosecute forced, non-consensual sex as 'cruelty'. Besides, Section
498A(a) defines cruelty as "wilful conduct ... likely to drive the
woman to commit suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the woman", and does
not pertain to sexual violence by the husband upon his wife. The
definition of "cruelty" in Section 498A(b), on the other hand, relates
to a demand for dowry. In the codification of criminal law, Ms John
submits that offences are separated and distinctly defined, and each
section (1) shall apply to, or in relation to,-- 1[(2) Nothing in sub-section (1) shall apply to, or in relation
to,--"
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in
that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made
under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been
made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules
made under this Act: Provided further that where such presents are made by or on behalf of the bride or any
person related to the bride, such presents are of a customary nature and the value thereof is not excessive
having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]
49113A. Presumption as to abetment of suicide by a married woman.--When the question is whether the
commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is
shown that she had committed suicide within a period of seven years from the date of her marriage and that
her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having
regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such
relative of her husband.1[113A. Presumption as to abetment of suicide by a married woman.--When the
question is whether the commission of suicide by a woman had been abetted by her husband or any relative of
her husband and it is shown that she had committed suicide within a period of seven years from the date of
her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may
presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her
husband or by such relative of her husband." Explanation.--For the purposes of this section, "cruelty" shall
have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)
113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such woman has been subjected by such person
to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such
person had caused the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have
the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860)
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special statute created for the protection of married women against
violence deals with specific crimes, particular thereto. "The crime of
rape", she submits, "is outside the purview of these statutes".
70. Relying on Independent Thought1 and Vishaka v. State of
Rajasthan51, Ms John also emphasises India's obligations under the
international conventions to which it is a party, specifically the
CEDAW which, according to Ms. John, requires Exception 2 to
Section 375 to be struck down. She has referred, in this context, to (i)
paras 22 and 23 of the concluding comments on the CEDAW in its
37th Session, 2007, (ii) para 11(c) of the concluding observations in
the 4th and 5th periodic reports of India in the 58th session of the
CEDAW in 2014e (iii) paras 22, 36, 69 and 70 to 72 of the UNSR on
Violence Against Women, Dubravka Šimonović in its 47th session,
2021, (iv) para 17 of Article 2, Srl. No. (v) of UNSR on Violence
Against Women, Dubravka Šimonović in its 47th session, 2021, (v)
paras 49 to 50 and 78 of the 26 th Session of the UNSR on Violence
Against Women in 2014 and (vi) the Report of the Special Rapporteur
on violence against women, its causes and consequences in the UNSR
VAW - 52nd Session of the Commission on Human Rights in 1996.
71. Ms John submits that, even if it were to be assumed that the IPC
recognised that the nature of the marital relationship was distinct from
other contractual relationships, no rational nexus was discernible in
the impugned Exception. The exact words used by her in the written
submissions tendered during arguments are the following:
(1997) 6 SCC 241
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"In comparison the nexus of Section 375 is to criminalise rape
- in brief, nonconsensual or forced sexual penetration of a
woman. For the purpose of argument, even assuming that
there may be an intelligible differentia that the law recognises
between the class of married and unmarried persons, there
must be a rational nexus to that differentia. In the case of the
crime of rape, can there be any difference in the consent that
an unmarried or a married woman gives to the man
committing rape upon her?"
72. Emphasising the fact that, in other common law jurisdictions,
the marital rape exception stands removed from the law, Ms John
submits that the continuance of the exception in India is an
anachronism. She seeks to deconstruct Section 375 by submitting that,
by including the impugned Exception therein, the IPC creates a fiction
that the acts and circumstances described in Section 375 do not
amount to rape where the parties are married. She also submits that
Section 375 is required to be read along with clauses (n)20 and (wa)52
of Section 2 of the CrPC and Sections 3353 and 4454 of the IPC.
73. Ms John reiterates that "the woman's consent is central to
making the act an offence". Consent, she submits, underlies the
immunity contained in Exception 1 in Section 375. As against this,
Exception 2, which is also couched in absolute terms, states that
sexual intercourse or sexual acts by a man with his own wife is not
rape. As such, the impugned Exception carves out an immunity
which disregards the ingredients of the offence, which includes,
52[(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission
for which the accused person has been charged and the expression "victim" includes his or her guardian or
legal heir;]
33. "Act", "Omission". --The word "act" denotes as well a series of acts as a single act : the word
"omission" denotes as well a series of omissions as a single omission.
5444. "Injury". --The word "injury" denotes any harm whatever illegally caused to any person, in body,
mind, reputation or property.
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within its fold, any of the acts contemplated by clauses (a) to (d) of
Section 375, if perpetrated without the consent of the woman.
74. Addressing, next, the aspect of "conjugal rights", Ms John
submits that, undisputedly, "a marriage comes with reciprocal
obligations and expectations of the spouses, including of sex".
Thereafter, she proceeds to submit thus:
"Marriage must be based upon mutual trust and respect.
Exception 2 violates marital trust and the sexual decisional
autonomy of the wife based on Macaulay's object of
protecting a husband's conjugal rights alone. A wife's right
to bodily autonomy will stand violated if the expectation (not
a right) of sex by her husband translates into a physical act of
forcible sex. The Exception, in effect, accords immunity to a
husband disregarding his wife's non-consent, which cannot be
the object of any provision, and therefore, it fails the test of
constitutionality."
75. In order for a statutory provision to accord with Article 14 of
the Constitution, Ms John submits that the classification created by the
provision must be founded on an intelligible differentia, and the
intelligible differentia must have a rational nexus to the object sought
to be achieved by the legislation. If the object of the classification is
illogical, unfair or unjust, the classification will be unreasonable. She
has placed reliance on Navtej Johar7 and State of Tamil Nadu v.
National South Indian River Interlinking Agriculturist Association55
to submit that Courts should be aware of the inadequacies of the
above two-pronged test, and over emphasis on the objective of law
instead of its effect, particularly when the objective was ostensible and
2021 SCC OnLine SC 1114
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did not further the true meaning of the equality clause as under the
Constitution. The object of Section 375, she submits, is
criminalisation of non-consensual or forced sex upon a woman. The
marital status of the woman is not an intelligible differentia, therefore,
to create a distinction for whether she can be subjected to sex against
her will or consent. From this, she echoes her colleagues in asserting
that "a rape is a rape regardless of the relationship between parties".
76. Adverting, next, to the existence of other provisions, under
which sexual violence, by a husband on his wife, may be punished,
she submits that they are insufficient to deal with rape as defined in
Section 375.
77. Finally, Ms. John joins her colleagues in submitting that, if the
impugned Exception were to be struck down, a new offence would not
be created. She submits that the impugned Exception already stands
diluted with the judgement in Independent Thought1, to para 190 of
which she draws reference to contend that effacing of the impugned
Exception from the statute does not "create a new offence but rather
merely removes the immunity historically provided to a particular
class of persons". She also relies, for this purpose, on the observations
contained in the judgement of the House of Lords in R v R44.
Submissions of learned Counsel who supported the impugned
Exception
Submissions of Mr J Sai Deepak, Counsel for the Men's Welfare
Trust
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78. Mr. J Sai Deepak, who argued on behalf of the Men's Welfare
Trust, commenced his submissions by clarifying that his client was
not opposed to criminalisation of spousal sexual offences, including
non-consensual sexual relationship. However, he submits, there
already exists a legal/penal framework to deal with such offences. He
submits that the issue at hand is not merely about consent, but also
about context, which learned Counsel for the petitioners refuse to
acknowledge. It would be erroneous, in Mr. Sai Deepak's
submission, to reduce the ambit of the discussion merely to the aspect
of "consent".
79. Mr. Sai Deepak seriously questions the jurisdiction and
authority of this Court to grant the reliefs sought by the petitioners.
Grant of such reliefs, he submits, would invariably result in creation
of a new class/species of offence, which is outside the boundaries of
Article 226 jurisdiction. It would also infract the doctrine of
separation of powers, and that too, in the matter of criminalisation.
Expanding on the aspect of separation of powers, Mr. Sai Deepak
submits that the doctrine is intended to preserve the right of the people
to participate in law and policy making. Grant of the reliefs sought in
the petitions, he submits, would keep the people outside the pale of
participation in law and policy making on such a sensitive social
issue, which would invariably truncate fundamental rights and
empower an unelected body, i.e. this Court, to undertake an exercise
beyond its constitutional mandate and expertise. Creation of an
offence, he points out, requires considerations of social impact, and
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the creation of an entire ecosystem, involving a definition, process,
safeguards, evidentiary standards and the forum which is to deal with
the offence thus created, none of which are open to legislation by a
Court of law. A Court of law, he submits, is ill-equipped to examine
such issues, as it is not designed for enabling participation by multiple
stakeholders, which is fundamental to a decision to regard an act is an
offence. Besides, he submits, the consequences of grant of the reliefs
sought in the petition are bound to be social and cultural, which is yet
another reason as to why a judicial forum cannot undertake a policy
decision of the kind that the petitioners seek. Designating an act as an
offence, punishable under the criminal law, he submits, requires wide-
ranging consultation with members of the public as well as subject
matter experts, with an analysis of concrete data based on ground
realities. It cannot be done in a peremptory manner, merely based on
anecdotal evidence. A Constitutional Court, he submits, cannot dictate
either the course of public cogitation or legislative deliberation. In
support of his contention that constitutional morality and institutional
independence would stand undermined were the petitioner's prayers to
be granted, Mr. Sai Deepak relies on paras 40 to 41 of the report in
Social Action Forum for Manav Adhikar v. U.O.I.56, para 37 of the
report in Indian Drugs & Pharmaceuticals Ltd v. Workmen57, para
43 of Kalpana Mehta v. U.O.I.58, para 5 of Suresh Seth v.
Commissioner, Indore Municipal Corporation59, para 23 to 26 of
Census Commissioner v. R Krishnamurthy60, para 3 of Anuja Kapur
56(2018) 10 SCC 443
57( 2007) 1 SCC 408
58 (2018) 7 SCC 1
(2005) 13 SCC 287
(2015) 2 SCC 796
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v. U.O.I.61 and para 5 of Madhu Kishwar v. State of Bihar62. As
against this, Mr. Sai Deepak submits, with respect to the judgements
cited by learned Counsel for the petitioners, that
(i) Devidas Ramachandra Tuljapurkar25 was a case in
which the Hon`ble Supreme Court sought to interpret Section
292 of the IPC, to assess if a prima facie case of obscenity was
made out in the facts of that case and, in paras 141(d) to (f), the
Hon`ble Supreme Court particularly noted that it was not
creating a new offence,
(ii) Hiral P. Harsora22, too, involved purposive
interpretation of the definition of "respondent" in Section 2(q)
of the DV Act, to enlarge the scope of the words "adult male"
as used in the said definition to include women and make it
gender neutral, and did not involve any express exception, in
the DV Act, providing immunity from prosecution for domestic
violence and
(iii) Balram Kumawat24 involved a question of interpretation
of whether the expression "ivory imported into India", as
contained in the Wild Life (Protection) Act, 1972, would
include mammoth ivory.
80. Mr. Sai Deepak disputes the petitioner's contention that the
impugned Exception either envisages, or requires, a wife to submit to
forced sex by her husband, or that it encourages a husband to impose
himself on his wife. He also disputes the contention that there are no
remedies, available in law, to address non-consensual sex between
W.P.(C) 7256 OF 2019
(1996) 5 SCC 125
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spouses. In this regard, he invites attention to Sections 376B and 498A
of the IPC and Section 198B of the Cr PC, as well as the provisions of
the DV Act. These provisions, inter alia, he submits, create a
legislative framework within which a husband, who indulges in non-
consensual sex with his wife, could be criminally prosecuted. By
including the impugned Exception and creating, side by side, a
separate legal ecosystem to deal with spousal sexual violence, which
indeed criminalises such an act, albeit without terming it "rape" within
the meaning of Section 375 of the IPC, he submits that the legislature
has acted within its boundaries, and no judicial interference therewith
would be justified. The distinction carved out by the legislature in
labelling and treatment of spousal sexual violence, he submits, is
"grounded in respect for the complexity of the institution of
marriage", and is both reasonable and based on intelligible differentia,
which satisfy Articles 14, 15, 19 and 21 of the Constitution. Sections
376B of the IPC read with Section 198B of the Cr PC, and Section
498A of the IPC, he submits, are sufficient proof of intelligible
differentia, as is also the impugned Exception, which provides for a
legitimate and different treatment of offences committed within the
bounds of a marriage or in the event of a legal or de facto separation.
81. Mr. Sai Deepak further submits that the impugned Exception
cannot be struck down on the ground that the existing remedies,
against spousal sexual violence, are inadequate. Inadequacy, he
submits, does not constitute unconstitutionality and, even if it exists, is
a matter to be remedied by the legislature, and is outside the province
of judicial intervention. He points out that this Court is exercising
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jurisdiction under Article 226, and not under Article 141 of the
Constitution.
82. Mr. Sai Deepak also refutes the contention, of the petitioners
that the impugned Exception is in the nature of a colonial legislation.
He submits that, though the impugned Exception was, no doubt,
engrafted in the pre-Constitutional era, it has been subjected to several
parliamentary cogitations and discussions after the Constitution was in
place. He also relies on Article 13(1) of the Constitution, which
protects pre-Constitutional laws so long as they pass muster on the
anvil of the Constitution. This, he submits, effectively preserves the
presumption of constitutionality of laws even if they were enacted
prior to coming into force of the Constitution, unless rebutted by a
successful challenger. In such circumstances, he submits that a Court
cannot interfere with legislative wisdom merely because it has a
different, or even a diametrically divergent, point of view, least of all
when, by doing so, a new offence, or a new class of offences, is being
created. Of all the prayers in all the petitions listed before this Court
(redolent of a famous Bogart quote), Mr. Sai Deepak submits that the
only prayer which may, constitutionally, be made, is prayer C in WP
(C) 6217/2016, which seeks a direction to the Union of India to
consider the issue raised in the petition, regarding the need to
continue, on the statute book, the impugned Exception to Section 375
of the IPC. None of the remaining prayers, in any of the petitions,
submits Mr. Sai Deepak, can be granted by the Court, if it is to remain
within its Constitutional boundaries.
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83. Were this Court to grant the prayers of the petitioners, submits
Mr. Sai Deepak, the direct and intended consequence would be
enlargement of the scope of the offence of rape and to recognise the
commission of rape in the context of a marriage. This, he submits, is
beyond the powers and authority of this Court under Article 226.
Contradistinguishing the present case from Navtej Johar7 and Shreya
Singhal v. U.O.I.63 , Mr. Sai Deepak submits that the present case
does not relate to a constitutional challenge to a criminalizing
provision. Any comparison of the present case with these decisions
would, therefore, in his submission, be misguided. Equally misguided,
according to Mr. Sai Deepak, is the reliance, placed by the petitioners
on Shayara Bano34, in which, even while striking down the practice
of talaq-e-biddat as unconstitutional under Section 264 of the Muslim
Personal Law (Shariat) Application Act, 1937, the decision of
whether to criminalise, or otherwise, the said practice was relegated to
the legislature, specifically recognizing that criminalisation, or
creation of an offence was the sole and executive preserve of the
legislature. Despite the judgement of the Supreme Court, therefore, he
submits that the practice of talaq-e-biddat would not be offensive in
law, unless the legislature created an offence in that regard.
84. Independent Thought1, in Mr. Sai Deepak's submission,
involved a very limited issue, as was set out in the opening paragraph
(2015) 5 SCC 1
642. Application of Personal Law to Muslims.--Notwithstanding any customs or usage to the contrary, in
all questions (save questions relating to agricultural land) regarding intestate succession, special property of
females, including personal property inherited or obtained under contract or gift or any other provision of
Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,
maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties
are Muslims shall be the Muslim Personal Law (Shariat).
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of the judgement, i.e. "whether sexual intercourse between a man and
his wife being a girl between 15 and 18 years of age is rape?". The
reliance, by the petitioners, on the said decision, as an authority on the
power of the judiciary to create a new species of offence was,
therefore, in his submission, completely misplaced. Mr. Sai Deepak
invites especial attention to para 190 of the decision, which clearly
holds that a Court cannot create an offence. The issue before the
Supreme Court in Independent Thought1, he points out, was whether
the specification, in the impugned Exception in Section 375, making
the Exception applicable where the wife was below the age of 15, was
sustainable, as it was clearly in conflict with the provisions of the
POCSO Act and the Prevention of Child Marriages Act, 2006 ("the
PCMA"). To bring the impugned Exception in harmony with these
statutes, and Section 198(6)65 of the Cr PC, the Supreme Court read
down the impugned Exception as being applicable where the wife was
between 15 and 18 years of age. As the Supreme Court held, thereby,
it was merely bringing in consistency between the impugned
Exception and the POCSO Act and the PCMA. Mr. Sai Deepak also
criticised the attempt, of Ms. Nundy, to treat Independent Thought1
as an authority on the aspect of the legality of the impugned Exception
in toto by applying the inversion test. In his submission, the inversion
test can have no application at all in the present case, as the Supreme
Court clearly held that the issue under consideration, before it, in
Independent Thought1, was the applicability of the impugned
65198. Prosecution for offences against marriage.--
*****
(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860),
where such offence consists of sexual intercourse by a man with his own wife, the wife being under [eighteen
years of age], if more than one year has elapsed from the date of the commission of the offence.
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Exception to girls between the age of 15 and 18, and also specifically
excepted the applicability of the decision to marriage between adults.
Independent Thought1, therefore, if anything, contends Mr. Sai
Deepak, would support the upholding of the impugned Exception,
rather than its evisceration.
85. Mr. Sai Deepak also disputes the petitioner's contention that
the impugned Exception is a colonial provision which lacks the
presumption of constitutionality. In his submission, Article 13(1)
bridges the gap between pre-Constitutional laws and the Constitution,
by clearly ordaining that pre-Constitutional laws would be void to the
extent they are inconsistent with the provisions of Part III of the
Constitution. Such inconsistency, he submits, cannot be presumed at
the outset, but would have to be demonstrated by the person seeking
to contend that the law is unconstitutional. Mr. Sai Deepak also
submits that the statement of the law, in Navtej Johar7, that
presumption of constitutionality does not attach to pre-Constitutional
laws, is per incuriam, as the earlier decisions in Chiranjitlal
Chowdhuri v. U.O.I.66, State of Bombay v. F.N. Balsara67 (by a
Constitution Bench) and Reynold Raiamani v. U.O.I.68 hold
otherwise. In his submission, given this difference of views, a case for
referring, to the Supreme Court, the issue of whether the observation
of the Supreme Court, in Navtej Johar7, that pre-Constitutional laws
lack presumption of constitutionality, is correct, or not, exists.
66 1950 SCR 869
1951 SCR 682
(1982) 2 SCC 474
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86. In any event, submits Mr. Sai Deepak, even after the enactment
of the Indian Constitution, the legislature has not only retained the
impugned Exception, but has also cited the institution of marriage and
the existence of other criminal remedies as a reason for retaining it.
The impugned Exception has received legislative attention several
times after the coming into force of the Constitution, thereby entitling
it to the same degree of presumptive constitutionality as a post-
Constitutional enactment. Apropos the instances when the validity of
the impugned Exception has come up for consideration and been
deliberated upon, Mr. Sai Deepak cites para 5.9.1 of the 167 th
Parliamentary Standing Committee on the Criminal Law
(Amendment) Bill, 2012, para 1.64 of the 19 th Report of the Lok
Sabha's Committee on Empowerment of Women and para 3.1.2.1 of
the 172nd Law Commission Report (2000). It would, therefore, in his
submission, be incorrect to contend that the impugned Exception is
still in the nature of a colonial provision which retains the baggage of
the English doctrine of coverture. Not a single document, he submits,
has been placed on record by the petitioners, on the basis of which it
could be said that the doctrine of coverture has operated as the
justification for retaining the impugned Exception on the statute book.
87. Mr. Sai Deepak further submits that, if the impugned Exception
were to be struck down, it would render otiose the "fourthly" clause in
Section 375, which is predicated on natural conjugal relations between
spouses. Husbands, he submits, have not been given a free pass with
respect to unnatural offences under Section 37716 or sexual cruelty
under Section 498A, which encompasses non-consensual sex and
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spousal sexual violence. It is, therefore, not correct to contend that the
legal framework as it stands today does not recognise the need for
consent in spousal sex. While recognising this necessity, Mr. Sai
Deepak points out that the legislature has also recognised the need for
differential treatment owing to the nature of the relationship between
the parties and the difficulty in establishing lack of consent where
there is no legal or effective separation within the meaning of Section
376B.
88. Rationalising the impugned provisions, Mr. Sai Deepak submits
that the acts envisaged by clauses (a) to (d) of Section 375 become
illegal, and amount to "rape" only in the event of satisfaction of any
one of the seven circumstances enumerated in "firstly" to "seventhly"
in the said provision and in the absence of consent between a
separated couple in the case of Section 376B. Consent, therefore, he
submits, is not the sole deciding factor, and is to be examined in the
backdrop of the circumstances in which it is refused. It is practically
impossible to establish the absence of consent if the issue arises within
the peripheries of a marital relationship, given the nature of intimacy
associated with the institution of marriage and the absence of
eyewitness accounts. It is for this reason, submits Mr. Sai Deepak, that
absence of consensual conjugal relations is easier to presume in the
event of legal or de facto separation under Section 376B. This is also
the reason, according to him, that a preliminary enquiry of sorts under
Section 198B of the Cr PC is undertaken, to assess whether the couple
is living apart although living under the same roof. The submission
that all that matters is consent, and that marriage changes nothing is,
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therefore, according to him, legally and factually baseless. Mr. Sai
Deepak points out that the factum of marriage results in serious
obligations on the part of the partners, from conjugal expectations and
rights to financial obligations, mental health obligations and a duty
towards progeny. In such circumstances, he submits that any
contention that the institution of marriage cannot justify the impugned
Exception is to deny the obvious.
89. A victim of spousal sexual violence, submits Mr. Sai Deepak,
can invoke the DV Act, Section 3 of which includes any conduct of a
sexual nature which abuses, humiliates, degrades or otherwise violates
the dignity of the wife within the ambit of the expression "sexual
abuse". This expression would, therefore, also embrace non-
consensual sex. Mr. Sai Deepak also submits that the contention, of
learned Counsel for the petitioners, that the DV Act provides only for
civil remedies is misplaced in view of Section 19(2)69 thereof. In fact,
he points out, as a matter of practice, directions for registration of FIR
under Sections 498A, 376B and 377 of the IPC are regularly passed in
exercise of the power conferred by the said provision.
90. Inasmuch as the impugned Exception is based on treating
spousal sexual violence as a species sui generis, and distinct from
"rape" within the meaning of Section 375, Mr. Sai Deepak submits
that the petitioners cannot seek to contend that striking down of the
6919. Residence orders.--
*****
(2) The Magistrate may impose any additional conditions or pass any other direction which he may deem
reasonably necessary to protect or to provide for the safety of the aggrieved person or any child of such
aggrieved person.
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impugned Exception would merely result in enlarging the scope of
offenders without creating a new offence or a species thereof. The
difference between the impugned Exception and the rest of Section
375, he submits, is in the "offence", and not in the "offender". In the
light of the legislative reticence to employ the expression "rape" in the
context of spousal relations, Mr. Sai Deepak contends that the
petitioner's argument that the prayers in the petition merely seek
enlargement of the class of offenders is baseless. The judgements
cited by learned Counsel for the petitioners, to the effect that a Court
can enlarge the class of offenders are, therefore, inapplicable to the
present case. In fact, in his submission, the reluctance of the
legislature to use the expression "rape" in the context of a spousal
relationship is not merely intended to protect the spouse, but also their
families and the products/issues from the marriage, i.e. their progeny.
91. Protection of the marital institution, submits Mr. Sai Deepak, is
a legitimate State interest in our society, and the mores and values of
other societies or countries cannot be foisted on us. In any event, the
current state of public morality on such issues, he submits, can only be
determined by the legislature and not by the Court. Every policy
disagreement cannot elevate itself to the level of unconstitutionality,
which is a high threshold. Courts, he submits, cannot be used as
instrumentalities to upset policy decisions merely because a cross-
section of the society disagrees with them. He cites, in this context,
paras 42 to 91 of Government of Andhra Pradesh v. P. Laxmi Devi70,
(2008) 4 SCC 720
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para 15 of Mohd Hanif Qureshi v. State of Bihar71, 39 of Sunil
Batra v. Delhi Administration72 para 150 of Joseph Shine6, para
205 of Bombay Dyeing & Manufacturing Co. v. Bombay
Environmental Action Group73 and paras 36 to 37 of Beeru v.
State74.
92. Mr. Sai Deepak has, finally, distinguished the position as it
obtains in India with that which obtains in overseas jurisdictions. In
the Sexual Offences Act of 2003, in the UK, for example, he points
out that Section 1 entitles the accused to defend himself on the ground
that he was under the reasonable belief that sexual intercourse with the
alleged victim was consensual. This, he submits, constituted an inbuilt
safeguard to the accused. Further, Section 23 of the Sexual Offences
Act exempted spouses and civil partners from the benefit of Sections
16 to 19, which dealt with abuse of a position of trust. The evidentiary
standards and circumstances in which presumptions could be drawn
are also exhaustively set out in the said Act, which also lays out the
standard operating procedure for prosecution of such cases.
Moreover, he submits, the Sexual Offences Act was a product of
legislative, and not judicial, intervention, and was also gender neutral.
The judgement of the European Court of Human Rights in C.R. v. the
United Kingdom75 was rendered in the context of a separated couple,
in which the estranged husband imposed himself on his former wife
which situation, in India, would be covered by Section 376B. In
71 AIR 1958 SC 731
72 (1978) 4 SCC 494
73 (2006) 3 SCC 434
2013 SCC OnLine Del 4995
(1995) 21 EHRR 363
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Nepal, he submits that petitions, similar to the present, were
dismissed; moreover, several procedural safeguards had been
introduced by the law, when spousal sexual violence became
criminalised, including the necessity of initiating a legal proceeding
within 35 days of commission of the offence. Further, in Nepal, too,
the law was gender neutral. In the US, he points out that different
States have adopted different positions and, in each of the said States,
the legislation was introduced by the legislature and not by the
judiciary. None of these instances, therefore, he submits, addresses a
situation such as the present in a gender neutral backdrop.
Submissions of Mr R.K. Kapoor, Counsel for HRIDEY
93. Mr. Kapoor, who appeared for one of the intervenors, draws
attention, at the outset, to the deliberations, regarding the impugned
Exception and the need for its retention or obliteration, by the
Department-Related Parliamentary Standing Committee on Home
Affairs in the Rajya Sabha on 1st March, 2013, in which the
Parliamentary Standing Committee considered, inter alia, the 172nd
Report on Review of Rape Laws given by the Law Commission of
India, the draft Criminal Law (Amendment) Bill, 2012 and Verma
Committee Report. After considering all these aspects and
recommendations, Mr. Kapoor points out that the Parliamentary
Standing Committee, nonetheless, recommended retention of the
impugned Exception, as there was an apprehension that its
evisceration could bring the family system under great stress and
render vulnerable the institution of marriage, which could result in
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more injustice than justice. Mr. Kapoor submits that the correctness
of this view is not amenable to judicial review, as it had been reached
after wide-ranging consultations with stakeholders - an exercise that
the Court is ill-equipped to undertake. Reliance has been placed, by
Mr. Kapoor, in this context, on para 409 of the report in Raja Ram
Pal v. Hon'ble Speaker76. He submits that Courts cannot go into
the sufficiency of the object sought to be achieved, or the motive of
the legislature in passing a statute or retain a provision, so long as
there was an object in existence.
94. Mr. Kapoor also seeks to underscore the pernicious
consequences that could result, were the impugned Exception to be
struck down. He submits that cohabiting husbands would, in such a
circumstance, be worse off than separated spouses under Section
376B, as they would be liable, in the case of conviction, to be
imprisoned for 10 years, extendable to life, whereas Section 376B
envisages punishment of not less than two years, extendable to seven
years. Further, the husband would be subjected to the presumptive
rigour of Section 114A of the Evidence Act, which does not apply to
Section 376B. As a matter of fact, he submits, Section 376B is in the
nature of an exception to Exception 2 to Section 375, setting out a
separate and distinct class. This, too, in his submission, indicates that
the legislature, in its wisdom consciously retained the impugned
Exception, despite making spousal sexual violence an offence in a
case where the spouses were judicially separated. The legislative
wisdom in such cases cannot be tested by the Court, he submits,
(2007) 3 SCC 184
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relying on Sant Lal Bharti v. State of Punjab77. Citing para 345 of
the report in T.M.A. Pai Foundation v. State of Karnataka78, Mr.
Kapoor submits that Article 14 frowns as much on meting out of equal
treatment to unequals, as on discrimination between persons equally
circumstanced. Absolute equality, he submits, relying on H.P. Gupta
v. U.O.I.79, is often unattainable and, so long as there is a perceptible
classification which serves a particular purpose, judicial interference
therewith is to be avoided.
95. Mr. Kapoor points out that the issue under consideration is not
whether spousal sexual violence is, or is not, to be punished as a
criminal act, as Parliament has not condoned spousal sexual violence.
It has merely stated that spousal sexual violence cannot be punished as
"rape" under Section 376 of the IPC. Other remedies have been
provided to deal with such situations, including Section 3 of the DV
Act. The sufficiency of such other remedies, as a panacea to spousal
sexual violence, he submits, is not judicially reviewable, and
Exception 2 to Section 375 cannot be struck down on the ground that
the remedies otherwise available to deal with cases of spousal sexual
violence are insufficient. Denial of sex by the wife, in particular
circumstances, he submits, also amounts to cruelty, which is a ground
for divorce.
96. In fine, Mr. Kapoor submits that the socio-legal milieu in India
is different, and distinct, from that which obtains in other jurisdictions,
77 (1988) 1 SCC 366
(2002) 8 SCC 481
(2002) 10 SCC 658
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and there is no justification for requiring India to apply, to itself,
decisions taken in other countries.
Analysis
Preliminary Observations
97. The discussions at the bar, in the present case, meandered into
so many dusky pathways, into which the provision under challenge
does not even pretend to venture, that, in the heat of the debate, the
actual issue before the Court suffered obfuscation to a considerable
degree. Meaningful art needs a clean canvas. It is necessary, therefore,
to know what we are dealing with.
98. Sexual autonomy of women is non-compromisable. Women are
morally, legally, spiritually, and in every other way that matters, equal
to men. The chance chromosomal circumstance that makes one a man
and the other woman has, with the passage of time, ceased to have any
significance worth the name. The Hale dictum of 15 th century vintage
which might, when originally propounded, have reflected the mores
and morals of the day has, with the passage of time, become almost
bewilderingly anachronistic. Our attention was drawn, by learned
Counsel, to the dictum, time and time again, to emphasise how
outlandish it is. We - for, on this, I am at one with my eminent
Brother - entirely agree. What I, personally, fail to understand,
however, is as to why such emphasis was placed on the Hale dictum.
There is nothing, whatsoever, to indicate that the impugned Exception,
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either at the time of its original conception, or later when it came up
for discussion on various occasions, was ever sought to be justified on
the Hale dictum. To all intents and purposes, therefore, the Hale
dictum is completely irrelevant to the issue at hand. Equally, I may
note, there is nothing to indicate that the impugned Exception, or its
continuance, is being sought to be justified on the basis of the
doctrines of coverture or implied consent. Reference to these
doctrines, which reflect the mores and morals of an age long past (and
hopefully never to return) is, therefore, in my view, unjustified.
99. When one is dealing with a statutory provision of considerable
vintage - as in the present case - the compulsions that might
originally have prompted its enactment, or even retention, might, with
the passage of time and changing social and societal perceptions,
change. The Court cannot, in my view, test the constitutionality of
such provisions solely by regarding their object to be what the original
framers of the provisions deemed it to be. Where, especially, the
issue of continuance, on the statute book, of the provision, has come
in for constitutional deliberation even post enactment of the
Constitution, the Court has to be alive to the issue of whether the
retention, or scrapping, of the provision would be advisable given the
present socio-legal realities and perceptions, and the justifiability for
retention of the provision as the legislature now perceives, even if it
be different from that which originally provoked its enactment.
There may be provisions which were enacted for a specific object and
purpose which have, with the march of time, become unjustifiable. If,
nonetheless, the provisions merit retention for other reasons even in
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the present day and age, the Court cannot shut its eyes thereto, and
merely examine the justification for the provision at the time of its
enactment. Legislation is, after all, intended, at all times, to maintain
social order. Even assuming Macaulay has, therefore, outlived his
welcome, the impugned Exception may nonetheless remain
constitutional and valid.
100. Provisions that compromise on woman's right to freedom of
sexual choice, either regarding the person with whom, or when, to
have sex, or that prohibit a person from prosecuting an offender for
having committed a statutory offence, or that violate any of the
fundamental rights guaranteed by Part III of the Constitution of India,
would necessarily be unconstitutional. The impugned Exception,
however, does none of these things, though learned Counsel for the
petitioners, who seek to have the provision done away with, would
emphatically urge to the contrary.
101. Let us reproduce, here, once again, the impugned Exception,
unshackled by Section 375:
"Sexual intercourse or sexual acts by a man with his own
wife, the wife not being under 15 years of age, is not rape."
The words of the impugned Exception are plain, and admit of no
ambiguity whatsoever. The impugned Exception is worded in
absolute terms though, statutorily, it finds place as an Exception to
Section 375. It merely states that sexual intercourse, or sexual acts
committed by a man with his wife are not rape. In effect, therefore,
the impugned Exception keeps rape, and the taint of rape, away from
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the marital sphere. It immunizes, in effect, the marital relationship
from the slur of rape, and the disgrace that comes with it, whatever be
the nature of the sexual activity that takes place within the four
corners of the relationship, and irrespective of whether the activity is
consensual or non-consensual.
102. Is this unconstitutional? That is the issue before us. We are not,
therefore, to judge on whether non-consensual sex within marriage
ought, or ought not, to be punished or, if it is, to opine on the
appropriate punishment that should visit the perpetrator of the act.
We have only to decide whether, in excepting, from the sphere of
marriage, any allegation of rape, the legislature has acted
unconstitutionally.
103. At this juncture, it is necessary to underscore the most
fundamental reason why, according to me, the petitioner's challenge is
thoroughly misconceived. One may refer, in this context, to the
following assertions, in the Written Submissions tendered by the
learned Counsels for the petitioners:
Submissions of Ms Nundy:
"The MRE suffers from irrationality and manifest
arbitrariness inasmuch as it provides immunity from a
prosecution for rape to a man for forcibly having sex with his
wife, but not to man forcibly having sex with a woman who is
not his wife ..."
"Thus, it is submitted that the alleged object of MRE -
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protection of conjugal rights and the institution of marriage -
would nullify the object of the main provision of
criminalizing rape."
"As such, by virtue of the MRE, a husband can enforce his
conjugal right (as he understands it) without going to a court
of law. It encourages some husbands to do illegally that which
cannot be done legally, on the purport that they are exercising
their conjugal right."
"A rapist remains a rapist and marriage with the victim does
not convert him into a non-rapist. Similarly, a rape is a rape
whether it is described as such or is described as penetrative
sexual assault or aggravated penetrative sexual assault."
"Prosecutions seeking conviction for rape in the guise of
grievous hurt or cruelty are necessarily trying to fit a square
peg in a round hole".
"Moreover, it is submitted that not calling a rape within
marriage, a rape, also has far reaching consequences for the
protection of its victims."
"Women raped by her husband do not get protections under
law available to other rape victims."
Submissions of Ms Rebecca John:
"Given the intended consequence of Exception 2 to Section
375 in the Indian Penal Code, 1860 where a married woman is
left remediless for an offence of rape committed by her
husband."
(While dealing with the available of remedies under other
statutes) "Each of the special statutes created for the
protection of married women against violence deal with
specific crimes. The crime of rape is outside the purview of
these statutes."
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"In the case of the crime of rape, can there be any difference
in the consent that an unmarried or a married woman gives to
the man committing rape upon her?"
"Other statutory provisions penalize crimes against married
women, but are insufficient to deal with rape as defined in
Section 375."
Submissions of Mr Rajshekhar Rao
"In this backdrop, the Exception is particular egregious in as
much as it a wife the ability to prosecute her husband for the
act of 'rape' whereas if the same act were perpetrated by any
other male, she would be entitled to do so."
"However, the effect of the Exception is to render the wife's
consent immaterial in as much as she cannot prosecute her
husband for having non-consensual sexual intercourse with
her, i.e., for the act of 'rape'."
"The legislative unwillingness to recognize the act of 'rape'
when perpetrated by a husband upon his wife is, in itself, an
affront to her 'dignity' and, thereby, violates her fundamental
right to life and liberty."
All the above submissions, without exception, proceed on the premise
that the husband, in having sex with his wife against her will or
consent, commits rape. This contention, in turn, is predicated on the
premise that every act of non-consensual sex, by a man with a woman,
is rape.
104. This submission, as made, besides being bereft of any sound
legal foundation whatsoever, consigns, to immediate oblivion, the
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impugned Exception. If this premise were to be accepted, i.e., of
every act of non-consensual sex by a man with a woman were, in law
and without exception, to be regarded as "rape", there would indeed
be nothing left to examine. The petitioners appear, in so urging, to
have failed to notice the distinction between the etymological and the
legal. To urge that rape, per definition, is non- consensual sex by a
man with a woman, is just as simplistic as the contention that murder,
per definition, is the taking of the life of one man by another. Just as
every incident of taking of the life by one, of another, is not murder,
every incident of non-consensual sex of a man with a woman is not
rape, howsoever much learned Counsel for the petitioners might want
it to be. The foundation of the petitioners' case is, therefore, with all
due respect to learned Counsel, fundamentally flimsy. A castle cannot
be built on reeds. As most of the submissions proceeded on the
premise that any and every act of sex by a man with a woman against
her will is necessarily rape, irrespective of the circumstances in which
they were situated, and the relationship between them, and then
condemn the impugned Exception as ordaining otherwise, the main
issue of whether, because it excepts sex and sexual acts within
marriage from the ambit of "rape", the impugned Exception is
unconstitutional, was lost in the clamour. The question of whether the
unique demographics of marriage, which unquestionably extend to the
sexual sphere as well, would, or would not, justify a differential
treatment being extended to sexual acts within marriage, even if non-
consensual, was not, I am constrained to observe, debated with the
seriousness it deserves.
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105. In this context, one may note a frank acknowledgement, in the
written submissions dated 1st March, 2022 by Ms Nundy, otherwise
one of the most vocal of the crusaders against the impugned
Exception. She acknowledges, in so many words, that "there can be
no doubt that there is an intelligible differentia between married,
separated and unmarried persons in all manners of laws that meets
Article 14". Of course, seized as we are with a constitutional
challenge, we cannot abdicate our responsibility to examine, ab initio,
whether such an intelligible differentia, in fact, exists. Ms Nundy,
however, does not talk through her hat. She is intelligent and
articulate, and clearly knows what she says. This frank and fair
acknowledgement, by her, is therefore, entitled to the weight it
deserves. Of course, Ms Nundy also submits, in the same breath, that
this "intelligible differentia" cannot justify the impugned Exception;
that, however, is a matter which I would discuss at greater length later
in this judgement.
106. The petitioners would seek to urge that the impugned Exception
is unconstitutional, as it violates three of the most sacred fundamental
rights guaranteed by the Constitution, ensconced in Articles 14,
19(1)(a) and 21. Needless to say, if the impugned Exception violates
even one of these Articles, it would be unconstitutional.
Re: Article 14
107. The petitioners are, undoubtedly, correct in urging that Article
14 of the Constitution would be violated by any provision which treats
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equals as unequals (or, I may add, unequals as equals80), without any
intelligible differentia having a rational nexus to the object sought to
be achieved by the provision, or which is otherwise arbitrary.
108. The impugned Exception treats non-consensual sex between a
husband and wife differently from non-consensual sex between
strangers. By virtue of the impugned Exception, while the latter is
rape, the former is not. The distinction is, therefore, in the act, and is
predicated on the relationship of the parties, between whom the act
occurs. The act of sex, when it takes place between parties who are
joined by marriage, declares the impugned Exception, is in no case
rape. The statutory proscription is absolute.
109. Applying the "intelligible differentia" test, the impugned
Exception would, therefore, infract Article 14 only if the relationship
of marriage, between the man and woman involved in the act, does not
provide any intelligible differentia having a rational nexus to the
object sought to be achieved by the impugned Exception.
110. The answer to this question is, to an extent, to be found even in
the following words, from the submissions of Ms. Nundy, to part of
which I have already alluded:
"There can be no doubt that there is an intelligible differentia
between married, separated and unmarried persons in all
matters of lawsthat meets Article 14. For example,
conversations in marriage are protected by spousal privilege
under Section 122 of the Evidence Act that no spouse can be
compelled to give evidence against the other. The 69th Report
80 Ref. State of Maharashtra v. Kamal S. Durgule, (1985) 1 SCC 234; U.O.I. v. Tulsiram Patel, (1985) 3
SCC 398; U.P. Power Corpn. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 SCC 139.
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of the Law Commission of India illustrates the rationale
behind the Section: why the protection is not afforded on any
theory of legal unity between the spouses, communications
exchanged between them is based on a higher degree of
confidence that goes with the marriage. Notably the report
says: "the marital privilege under the section does not apply in
proceedings between the spouses or proceedings in which one
married person is prosecuted for any crime committed against
the other."
(Emphasis supplied)
While Ms Nundy emphasises the fact that spousal privilege also stops
where the spouses are at war, so to speak, what is significant is the
raison d'etre for the spousal privilege, being the "higher degree of
confidence that goes with a marriage". Marriage is, therefore, a
relationship which brings, with it, a higher degree of confidence,
between the partners, than that which exists between persons who are
not married.
111. Marriage, submits Mr. Nundy, is no ticket to sex. There is, she
submits, no "conjugal right" to sex. Conjugal rights, in a marital
relationship as understood in Indian law, extend only to cohabitation
and consortium. Sex, in marriage is, therefore, merely a "conjugal
expectation".
112. The focus slightly shifts. Does the higher degree of confidence,
which distinguishes a marital relationship, coupled with the conjugal
right to cohabitation and consortium (implying, at the least, a legally
enforceable right to the company of each other), and what Ms Nundy
calls a "conjugal expectation" of sex, not constitute justifiable basis
for the differential treatment extended, by the legislature, to sex and
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sexual acts within marriage, even if non-consensual, vis-à-vis non-
consensual sexual acts between strangers? Equally importantly, if the
legislature has deemed it appropriate to treat these two situations
differently, to what extent can a Court, exercising jurisdiction under
Article 226 of the Constitution of India, judicially review the
legitimacy of the legislative view?
The 'institution of marriage', and the intelligible differentia that
results
113. The demographics of a marriage are sui generis. The marriage
may be between equals or unequals; it may be good or bad; it may be
happy or sad; in every case, however, the factum of marriage, and the
relationship between the parties that emerges consequent to the
solemnisation of marriage, have their own distinct and identifiable
indicia, not to be found in any other relationship between any two
individuals. Myriad are the examples of male-female relationship;
they may be mother and son, sister and brother or, less platonically,
girlfriend and boyfriend, or fiancée and fiancé. The relationship
between husband and wife, which emerges as a result of the tying of
the proverbial matrimonial knot is, however, distinct from each and all
of these relationships. To ignore, or even to seek to undermine, this,
is to ignore plain reality. Equally plain, and real, is the fact that the
primary distinction, which distinguishes the relationship of wife and
husband, from all other relationships of woman and man, is the
carrying, with the relationship, as one of its inexorable incidents, of a
legitimate expectation of sex.
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114. This aspect of the matter has been correctly emphasised by Mr.
Sai Deepak, and I find myself entirely in agreement with him. The
petitioners, in my view, have completely failed to note the uniqueness
of marriage as an institution, its peculiar demographics and incidents,
and the emotional, psychological, social and other complex equations
that exist between a wife and a husband. As Ms Nundy herself
acknowledges, there are several legislations which recognise the
inherent differences that arise in the context of a marital relationship.
The submissions of the petitioners effectively consign all unique
incidents of a marital relationship to obscurity. This is particularly
evident from a somewhat surprising submission that Mr. Rao, learned
amicus, sought to advance. Mr. Rao sought to visualise four
situations; the first in which the man and woman are strangers, the
second in which the man and woman are not yet married, but are five
minutes away from marriage, the third in which the man and woman
have been married five minutes earlier and the fourth in which the
man and woman, though married, are separated. Mr. Rao sought to
contend that the incongruity in the impugned Exception was manifest
from the fact that while, in the first, the second and the fourth
instance, non-consensual sex by the man with the woman would
amount to rape, it would not, in the third instance. What was rape ten
minutes earlier, therefore, submits Mr. Rao, is not treated as rape ten
minutes later, though the act is the same and there is want of consent
on both occasions.
115. The error in the submission is self-evident. The submission
completely consigns, to the backdrop, the marriage that took place
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between the man on the woman, during the momentous ten minutes
between the second and the third instance. It is this fundamental error
of perception that colours nearly all the submissions advanced by
those who seek to oppose the continuance of the impugned Exception
on the statute book. Learned Counsel for the petitioners, I am
constrained to observe, have, in their submissions, regarded the
existence of a marital relationship between the man and the woman as
just another incident, which does not really amount to anything much.
Ms Nundy has, in her submissions, in fact, referred to it as an
"imposed conception of marriage". She submits that "an individual's
right not to be raped cannot be held hostage to an imposed conception
of marriage". In the first place, I do not understand as to how
marriage can be treated as an "imposed conception", or even a
"conception" at all. It is a real and salutary institution, which, in a
healthy instance, reflects complete emotional and psychological unity
between the man and the woman. In a similar vein, Ms. John has
submitted that the consequence of the impugned Exception is
therefore "that a provision which otherwise criminalises sex without
the consent of the woman, exempts a husband from being prosecuted
simply because he is married to her".
116. Marriage is neither a playground, nor a gladiatorial arena. It is
the most pristine institution of mankind, on which the entire bedrock
of society rests. The importance of marriage, and the relationship
between a husband and wife joined in holy matrimony - Mr Rao's
submission that marriage is no longer considered sacred in law being,
to my mind, completely unacceptable - cannot be undermined.
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Between a husband and wife, who spend their days and nights
together, living in a house which, by the dint of their joint effort, they
make a home, there exists a bond which defies, and indeed transcends,
all known and identifiable parameters. In our country, marital vows
are still regarded as inviolable, and marital fidelity is, fortunately, still
the norm, profligacy being the exception (even if adultery is no longer
a criminal offence). The sexual aspect is but one of the many facets of
the relationship between husband and wife, on which the bedrock of
their marriage rests. Care, consideration, and an understanding of one
other's likes and dislikes, hopes and aspirations, are fundamental to
the sustenance of a marriage that is to abide. There can be no
comparison, whatsoever, between the relationship between a husband
and a wife, with any other relationship between man and woman. It is
for this reason that there is an enforceable legal right - which even Ms
Nundy acknowledges - of each party in a marriage, to cohabit with,
and for the consortium of, the other. Fostering the sustenance of a
marriage is, in the law as it exists in this country, not just advisable; it
is, even for courts, a binding legal obligation. A court hearing a
petition for divorce, even by mutual consent is, in our legal system,
not entitled to grant divorce straightaway, even if both parties appear
to be irreconciliably at odds. The judge is bound, by his oath, to
confer and interact with the warring couple, and to make every
possible effort to save, rather than sever, the marital bond.
117. Of marriage, the Supreme Court spoke thus, in Mr X v.
Hospital Z81:
(1998) 8 SCC 296
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"Marriage is the sacred union, legally permissible, of two
healthy bodies of opposite sexes. It has to be mental,
psychological and physical union. When two souls thus unite,
a new soul comes into existence. That is how, life goes on
and on on this planet."
In somewhat greater detail, Chetan Dass v. Kamla Devi82 observes
thus:
"Matrimonial matters are matters of delicate human and
emotional relationship. It demands mutual trust, regard,
respect, love and affection with sufficient play for reasonable
adjustments with the spouse. The relationship has to conform
to the social norms as well. The matrimonial conduct has now
come to be governed by statute framed, keeping in view such
norms and changed social order. It is sought to be controlled
in the interest of the individuals as well as in broader
perspective, for regulating matrimonial norms for making of
a well-knit, healthy and not a disturbed and porous society.
The institution of marriage occupies an important place and
role to play in the society, in general. Therefore, it would not
be appropriate to apply any submission of "irretrievably
broken marriage" as a straitjacket formula for grant of relief
of divorce. This aspect has to be considered in the
background of the other facts and circumstances of the case."
(Emphasis supplied)
Indra Sarma v. V.K.V. Sarma83, too, examines the institution of
marriage in considerable detail:
"24. Marriage is often described as one of the basic civil
rights of man/woman, which is voluntarily undertaken by the
parties in public in a formal way, and once concluded,
recognises the parties as husband and wife. Three elements of
common law marriage are (1) agreement to be married (2)
living together as husband and wife, (3) holding out to the
public that they are married. Sharing a common household
and duty to live together form part of the consortium omnis
vitae which obliges spouses to live together, afford each other
reasonable marital privileges and rights and be honest and
(2001) 4 SCC 250
(2013) 15 SCC 755
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faithful to each other. One of the most important invariable
consequences of marriage is the reciprocal support and the
responsibility of maintenance of the common household,
jointly and severally. Marriage as an institution has great
legal significance and various obligations and duties flow out
of marital relationship, as per law, in the matter of
inheritance of property, successionship, etc. Marriage,
therefore, involves legal requirements of formality, publicity,
exclusivity and all the legal consequences flow out of that
relationship.
25. Marriages in India take place either following the
Personal Law of the religion to which a party belongs or
following the provisions of the Special Marriage Act.
Marriage, as per the common law, constitutes a contract
between a man and a woman, in which the parties undertake
to live together and support each other. Marriage, as a
concept, is also nationally and internationally recognised.
O'Regan, J., in Dawood v. Minister of Home Affairs84 noted
as follows:
"Marriage and the family are social institutions of
vital importance. Entering into and sustaining a
marriage is a matter of intense private significance to
the parties to that marriage for they make a promise to
one another to establish and maintain an intimate
relationship for the rest of their lives which they
acknowledge obliges them to support one another, to
live together and to be faithful to one another. Such
relationships are of profound significance to the
individuals concerned. But such relationships have
more than personal significance at least in part
because human beings are social beings whose
humanity is expressed through their relationships with
others. Entering into marriage therefore is to enter
into a relationship that has public significance as well.
The institutions of marriage and the family are
important social institutions that provide for the
security, support and companionship of members of
our society and bear an important role in the rearing
of children. The celebration of a marriage gives rise to
(2000) 3 SA 936 (CC)
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moral and legal obligations, particularly the
reciprocal duty of support placed upon spouses and
their joint responsibility for supporting and raising
children born of the marriage. These legal obligations
perform an important social function. This importance
is symbolically acknowledged in part by the fact that
marriage is celebrated generally in a public ceremony,
often before family and close friends...."
*****
32. We have referred to, in extenso, about the concept of
"marriage and marital relationship" to indicate that the law
has distinguished between married and unmarried people,
which cannot be said to be unfair when we look at the rights
and obligations which flow out of the legally wedded
marriage. A married couple has to discharge legally various
rights and obligations, unlike the case of persons having live-
in relationship or, marriage-like relationship or de facto
relationship.
33. Married couples who choose to marry are fully
cognizant of the legal obligation which arises by the operation
of law on solemnisation of the marriage and the rights and
duties they owe to their children and the family as a whole,
unlike the case of persons entering into live-in relationship.
This Court in Pinakin Mahipatray Rawal v. State of
Gujarat85 held that marital relationship means the legally
protected marital interest of one spouse to another which
include marital obligation to another like companionship,
living under the same roof, sexual relation and the exclusive
enjoyment of them, to have children, their upbringing,
services in the home, support, affection, love, liking and so
on.
*****
52. Tipping, J. in Thompson v. Deptt. of Social
Welfare86 listed few characteristics which are relevant to
determine relationship in the nature of marriage as follows:
(2013) 10 SCC 48
(1994) 2 NZLR 369 (HC)]
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"(1) Whether and how frequently the parties live in
the same house.
(2) Whether the parties have a sexual relationship.
(3) Whether the parties give each other emotional
support and companionship.
(4) Whether the parties socialise together or attend
activities together as a couple.
(5) Whether and to what extent the parties share the
responsibility for bringing up and supporting any
relevant children.
(6) Whether the parties share household and other
domestic tasks.
(7) Whether the parties share costs and other
financial responsibilities by the pooling of resources or
otherwise.
(8) Whether the parties run a common household,
even if one or other partner is absent for periods of
time.
(9) Whether the parties go on holiday together.
(10) Whether the parties conduct themselves
towards, and are treated by friends, relations and
others as if they were a married couple."
(Emphasis supplied)
118. Learned Counsel for the petitioners have, in my considered
opinion, completely failed to accord, to the marital relationship, the
status and importance it deserves. It has been characterized, by learned
Counsel, even in their written submissions as "an institution", to
which, according to them, "individual rights" cannot be subservient.
Marriage, the submissions fail to take into account, is not a brick-and-
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mortar institution. It is an institution which epitomizes, at the highest
level, the most sublime relationship that can exist between man and
woman. Decidedly, it is not an "imposed conception".
119. In this relationship, given its unique character and complexity,
the legislature has, advisedly, felt that no allegation of "rape" has
place. Sex between a wife and a husband is, whether the petitioners
seek to acknowledge it or not, sacred. In no subsisting, surviving and
healthy marriage should sex be a mere physical act, aimed at
gratifying the gross senses. The emotional element of the act of sex,
when performed between and wife and husband, is undeniable. The
marital bedroom is inviolable. A legislation that seeks to keep out,
from the parameters of such a relationship, any allegation of 'rape', in
my view, is completely immune to interference.
120. Introducing, into the marital relationship, the possibility of the
husband being regarded as the wife's rapist, if he has, on one or more
occasion, sex with her without her consent would, in my view, be
completely antithetical to the very institution of marriage, as
understood in this country, both in fact and in law. The daughter born
of such an act would, if the petitioner's submissions are to be
accepted, be a product of rape. Though the child has been born out of
wedlock, and out of a perfectly legitimate sexual act between her
parents, she would be the child of a rapist because her mother was, on
the occasion when she had sex with her father, been unwilling. Her
father, as a rapist, would be liable to suffer the punishment stipulated
in Section 376, were her mother to prosecute. The sequelae, were the
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submissions of the petitioners to be accepted, are mind boggling.
121. The submission, of learned Counsel for the petitioners, that, as
the impugned Exception accords sanctity to the institution over the
rights of the individuals involved in the institution, it is
unconstitutional is, therefore, fundamentally flawed. Marriage, as
already noted, is not a brick and mortar institution. The "institution" of
marriage represents the cohesive and sanctified union of the
individuals in the marriage. The individuals, therefore, make the
institution. If the institution is imperilled, the individuals are
imperilled. Moreover, in advancing this submission, learned Counsel
seem to overlook the fact that, in a marriage, there are two individuals
involved. Sustenance of the marital institution, therefore, involves
sustenance of the rights of every husband and every wife in the
country, united by a bond of marriage. Protection of the institution of
marriage is, therefore, a sanctified constitutional and social goal.
Preservation of the marital institution being the avowed object of
retaining the impugned Exception on the statute book, the submission,
of learned Counsel for the petitioners, that it has outlived its use is
also completely bereft of substance. This is quite apart from the fact
that, as I observe elsewhere in this judgement, the impugned
Exception results in no prejudice, at all, to the fundamental rights of
wives.
122. It is sanctified, in law, that public interest trumps private
interest. Given the nature of the marital institution in our socio-legal
milieu, if the legislature is of the view that, for preservation of the
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marital institution, the impugned Exception should be retained, the
Court would not be in a position to strike down the Exception unless it
were to hold, per contra, that the view of the legislature is incorrect.
That, however, we cannot do, as it would amount to substituting our
value judgement for the value judgement of the legislature, which, in a
democracy, is unquestionably entitled to precedential preference, as
the voice of the legislature is, classically and constitutionally, the
voice of the people.
123. Learned Counsel for the petitioners have emphasised that
marriage does not entitle a husband to have forceful sex with his wife,
against her willingness or consent. The proposition is
unexceptionable. It is in presuming the sequitur to this proposition to
be that the impugned Exception is unconstitutional, that learned
Counsel for the petitioners, in my considered opinion, err. To my
mind, in fact, the proposition is really tangential to the issue at hand.
124. Marriage, unquestionably, does not entitle a husband to coerce
his wife into sex, if she is not inclined. The impugned Exception does
not, however, either expressly or by necessary implication, confer, on
the husband in a marriage, an entitlement to insist on sex with his
wife, against her willingness or consent (This aspect would be
examined, in somewhat greater detail, a little later.) All that it says is
that sexual intercourse and sexual acts - which one may, for the
purposes of convenience, refer to, generally, as "sex" - by a husband
with his wife, is not rape. By extrapolation, it may be inferred that the
impugned Exception also excepts, from the scope of "rape", a
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situation in which the wife is not willing or does not consent. Any
further extrapolation, to imply that the provision encourages, or even
sanctions or permits, non-consensual sex by a husband with his wife
would, in my opinion, would be completely unwarranted.
125. The Supreme Court, half a century ago in the celebrated
decision of Dastane v. Dastane87, observed that "sex plays an
important role in marital life and cannot be separated from other
factors which lend to matrimony a sense of fruition and fulfillment".
On similar lines, the following observations of a Division Bench of
this Court in Rita Nijhawan v. Balkrishan Nijhawan88 were cited,
with approval, by the Supreme Court in Vinita Saxena v. Pankaj
Pandit89:
"22. In the present case the marriage took place in 1954.
Barring the pregnancy in 1958 which according to the
appellant was the result of part improvement, right from the
day of marriage till 1964, there has never been any normal
sexual life, and the respondent has failed to give sexual
satisfaction. The marriage has really been reduced to a
shadow and a shell and the appellant has been suffering
misery and frustration. In these days it would be unthinkable
proposition to suggest that the wife is not an active participant
in the sexual life and therefore, the sexual weakness of the
husband which denied normal sexual pleasure to the wife is of
no consequence and therefore, cannot amount to cruelty.
Marriage without sex is an anathema. Sex is the foundation of
marriage and without a vigorous and harmonious sexual
activity it would be impossible for any marriage to continue
for long. It cannot be denied that sexual activity in marriage
has an extremely favourable influence on a woman's mind and
body. The result being that if she does not get proper sexual
satisfaction it will lead to depression and frustration. It has
87 (1975) 2 SCC 326
AIR (1973) Del 200
(2006) 3 SCC 778
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been said that the sexual relations when happy and
harmonious vivifies woman's brain, develops her character
and trebles her vitality. It must be recognized that nothing is
more fatal to marriage than disappointments in sexual
intercourse."
Significantly, the Supreme Court, in Vinita Saxena98, recognises sex
to be a "matrimonial obligation". Irrespective, therefore, whether
"conjugal rights" extend to a right to have sex, sex remains a conjugal
obligation, even if not mandatorily enforceable by a decree of Court.
126. Marriage, as a sociological instrument, confers legitimacy to
sexual activity between man and woman. A child "born of wedlock",
therefore, is "legitimate"; one born out of wedlock is not. One of the
grassroots justifications for marriage is, unquestionably, the right to
engage in sexual activity without societal disapprobation. Neither
member of an unmarried couple has a right to seek sex from the other
nor does either member have a right to expect sex from the other. At
the highest, even in the case of a live-in couple, there is no right to
expect sex; as the highest, the expectation of sex is merely a hope.
127. The expectation of sex of the husband, with his wife is,
therefore, a legitimate expectation, a healthy sexual relationship being
integral to the marital bond. Unjustified denial of sexual access, by
either spouse to the other, is not, therefore, sanctified or even
condoned by law. It may not invite criminal action; it, nonetheless,
entitles the spouse, to whom sexual access has been unjustifiably
denied, to seek a separation by way of divorce. The integrity of a
subsisting social equation between wife and husband as a necessary
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ingredient of a sustainable marriage stands, thereby, recognised by
law. Divorce, unquestionably, visits both the spouses with civil and
societal, as well as personal and psychological, consequences. The
law, too, therefore, recognises the legitimacy of the desire of either
spouse to have meaningful sexual relations with the other, as not only
a civil, but a legal obligation. This aspect is, in fact, acknowledged
by Ms. John when in her submission, she admits that "a marriage
comes with reciprocal obligations and expectations of the parties,
including of sex".
128. The fact that the obligation may be enforceable, by law, to a
greater, or a lesser, degree, does not detract from its character as an
obligation. Unreasonable denial of sex to a spouse has also been held,
in several decisions, to amount to "cruelty"90. Cruelty, needless to
say, can never be something which the law sanctifies.
129. Viewed in this backdrop, let us compare a situation of sex,
without a woman's consent or willingness, being forced upon her by a
stranger, with a situation in which the man is her husband. The
stranger is a violator without right, who does not even have an
expectation, which may be regarded as legitimate, of sex with the
woman. The woman, in such a situation, surrenders her sexual
autonomy, and freedom of choice, to a complete stranger, with whom
she has no relationship that legally entitles the man to seek sex from
her. It is an assault on her independence, and on her right to choose
90 Rita Nijhawan v. BalkrishanNijhawan supra; Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511;
Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21
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her sexual partner. The man, in turn, acts in total disregard of the
right of the woman to independent sexual choice. It is for this reason
that rape, which is often regarded as a crime of lust, is actually a crime
of power.
130. Contradistinguish, now, this situation, with a situation of a
husband forcing his wife to have sex with him, despite her
unwillingness. That what he is doing is wrong, no one can deny. The
distinction between the two situations is that, where the parties are
married, the woman has consciously and willingly entered into a
relationship with the man in which sex is an integral part. She may
not, therefore, as Lord Hale thought, have cleaved unto the man for
life, or surrendered her sexual autonomy to the will of the man. She
has, nonetheless, by her decision to marry the man, given, to him, the
right to expect meaningful conjugal relations with her. If, therefore,
the man, in such a situation, requests her, on a particular occasion, to
have sex, he is exercising a right that vests in him by marriage, and
requests his wife to discharge an obligation which, too, devolves on
her by marriage. If the wife refuses, and the husband, nonetheless,
has sex with her, howsoever one may disapprove the act, it cannot be
equated with the act of ravishing by a stranger. Nor can the impact
on the wife, in such a situation, be equated with the impact of a
woman who is raped by a stranger. Any assumption that a wife, who
is forced to have sex with her husband on a particular occasion when
she does not want to, feels the same degree of outrage as a woman
raped by a stranger, in my view, is not only unjustified, but is ex facie
unrealistic. Disagreements, in married life, are but natural and, on
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occasion, may even lend strength to the marital bond. These
disagreements could also extend to the bedroom. A husband may, on
occasion, compel his wife to have sex with him, though she may not
be inclined. Can it be said, with even a modicum of propriety, that her
experience is the same as that of a woman who is ravaged by a
stranger? Equally, can it be said, reasonably, that a wife, in a
subsisting and surviving marriage with her husband with whom she
cohabits who, on one or even more, occasions, has had to have sex
with her husband despite her reluctance and unwillingness, would
want to drag her husband to court for rape, seeking his incarceration
under Section 376? The petitioners may contend in the affirmative; in
my opinion, though there is no basis for such a contention. It cannot
even be assumed, in my view, that the perceptions of the petitioners
reflect the views of the majority of Indian women. Any such
contention would, at the very least, be purely presumptive in nature.
This aspect is important. As Mr Tushar Mehta, learned Solicitor
General correctly submitted, the impugned Exception, and its
evisceration from the statute book, are not issues of merely legal
import; the issue has wide societal and sociological ramifications,
which cannot be ignored. The perception of the teeming millenia of
this country cannot, therefore, be regarded as an illegitimate
consideration, while examining the need, or otherwise, to retain the
impugned Exception in Section 375 of the IPC.
131. The extent to which, if the concept of 'rape' were to be
introduced into the marital equation, the institution of marriage, or
family, would be affected, is not something on which this Court can
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opine. The legislature feels that it does. In arriving at this conclusion,
the legislature has, at its command, the vast arsenal of State resources.
Legislation is not an overnight exercise, least of all when it involves
the decision to define an act as an offence. If, therefore, the
legislature, after interaction with stakeholders and after conscious
deliberation and debate, forms the opinion that introduction of the
concept of 'rape' into the marital sphere may imperil the institution of
marriage, this Court, at the instance of arguments of Counsel,
howsoever gifted, would, in my opinion, be thoroughly ill-equipped to
hold otherwise. Even if the legislature were merely to decide not to
'take chances', that, too, in my view, would not be an illegitimate
consideration. This Court cannot, therefore, substitute its view for
that of the legislature, and hold, definitively, that treating non-
consensual sex by a husband with his wife would not imperil, or
threaten, the marital institution. Neither do we have the wherewithal,
or the resources, to undertake an incursive study into the issue, nor,
for that matter, can we legitimately do so. The consideration and the
concern of the legislature are legitimate. The legislation must, ergo, be
upheld.
132. Acts of physical violence by a husband on his wife, needless to
say, are a different matter altogether, and cannot be the lodestone on
the basis of which we test the vires of the impugned Exception. Rape
encompasses all acts, from a single act of unwilling or non-consensual
sex to the grossest act of non-consensual sexual violence. The
constitutionality of the impugned Exception cannot be tested by
referring only to gross acts of sexual assault such as that which appear
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to have, unfortunately, visited the petitioner in WP (C) 5858 of 2017,
for the simple reason that the consequence of our striking down the
impugned Exception would be that even a single act of non-
consensual sex, or of sex by a husband with his wife without
unwillingness, would qualify as "rape". Can it be said, in such
circumstances, that in distinguishing between such acts, when they
occur between a husband and wife, with an act of rape by a stranger
on a stranger, the legislature has acted either arbitrarily, or that there is
no intelligible differentia between the two cases, which bears a
rational nexus to the object sought to be achieved by the impugned
Exception?
133. Our task, here, is not to pronounce on whether the husband, in
acting as he does, commits, or does not commit, an actionable wrong.
We may assume, arguendo, that he does. Our task is to adjudicate on
whether, in desisting from treating him as a rapist, who has committed
"rape" within the meaning of Section 375, punishable under Section
376, the legislature can be said to have acted arbitrarily or
unconstitutionally. Given the unquestionable qualitative distinction
which exists between sexual relations in a marriage, vis-à-vis sexual
relations between strangers, if the legislature has, in its wisdom,
decided to treat non-consensual sex by a man with a woman, where
the woman is a stranger, as rape, and non-consensual sex by a husband
with his wife, as not rape, I am unable to subscribe to the submission
that the distinction violates Article 14 of the Constitution of India.
Re. the argument that the impugned Exception creates "three classes
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of victims"
134. Among the contentions advanced by Ms. Nundy is the
contention that the impugned Exception violates Article 14 as it
creates three classes of victims, though the act committed is the same.
In other words, Ms. Nundy submits that the same act of non-
consensual sexual intercourse, when committed by a stranger, by a
husband or by a husband who has parted ways with his wife, is
differently treated. This, according to her, is unconstitutional, and
violates Article 14.
135. The contention, to my mind, is completely bereft of substance.
There is no principle, in law, that the same act, when committed by
different persons, or by perpetrators differently situated vis-à-vis the
victim, or in different circumstances, cannot be differently treated.
Legally, there is no infirmity in treating the act as a crime in one
circumstance, and perfectly condonable in another. A father slapping a
son is not a criminal offence, whereas a stranger who slaps a child
may well be committing a crime. Robbery, otherwise chargeable
under Section 390 of the IPC, becomes, when conjointly committed or
attempted to be committed by five or more persons, dacoity,
punishable under Section 391. Even within the definition of rape, if
the act is committed in one of the circumstances envisaged by Section
376(2), it is treated as "aggravated" rape, entailing a higher punitive
sentence.
135 A Every offence has, essentially, four indicia; the perpetrator, the
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victim, the act and the punishment. The four, together, assimilate into
what a statute regards as a particular offence. It is not possible to
vivisect the offence, as a statutory conception of the legislature, and
start viewing these four indicia as individual components, unrelated to
each other. An "act" cannot be divorced from its actor. Offences are
not committed by insubstantial phantasms. An act of non-consensual
sex, as committed by a complete stranger, cannot, therefore, be
equated with an act of non-consensual sex by a husband. The extent of
outrage felt by the wife, in the two cases, is also distinct and different.
It would be artificial to assume that the degree of outrage felt by a
wife who is compelled to have sex on a particular occasion with her
husband, despite her unwillingness, is the same as the degree of
outrage felt by a woman who is ravaged by a stranger against her will.
Even when viewed from the point of view of the perpetrator, who is,
after all, the statutory offender, and who has to suffer the punishment
prescribed for the act, the legitimate expectation of sex, that the
husband has, is, in my view, a factor which may legitimately be
regarded as mitigating the culpability, as the perpetrator of the act of
non-consensual sex, vis-à-vis a stranger who has no such legitimate
expectation, much less a right. There is, therefore, an intelligible
differentia in the two cases. From the point of view of the victim, it
would be equally unrealistic to presume that a wife, on whom a
husband forces sex, against her will on a particular occasion, would
suffer the same degree of violation as a woman who is ravaged by a
stranger. From the point of view of the victim, too, there is, therefore,
an intelligible differentia. One of the most significant distinctions
between the two situations is that, in the case of an act of non-
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consensual sex between a husband and wife, there is no societal
ramification whatsoever, unlike in the case of a woman raped by a
stranger, as the act takes place within the privacy of the marital
bedroom and, more empirically, because the man and the woman are
married.
'Conjugal right' versus 'conjugal expectation'
136. It has been repeatedly emphasised by learned Counsel for the
petitioners that the "conjugal expectation of sex" does not extend to
sex against the will of the spouse. As Ms. Nundy felicitously puts it,
conjugal rights end where bodily autonomy begins. I am entirely in
agreement with the submission. Where, however, I cannot agree with
learned Counsel for the petitioners is in their further submission that,
for this reason, the impugned Exception deserves to be struck down.
The impugned Exception does not, either directly or by necessary
implication, state that, by reason of marriage, a husband has a right to
have sex with the wife against her will or consent. All that it says is
that, if he does so, he, unlike a stranger committing such an act, cannot
be treated as a rapist. There is a clear intelligible differentia between
the two situations, viewed from the point of view of the act, the
perpetrator, the victim, the degree of culpability and the degree of
outrage that the victim would feel once the act is perpetrated. At the
very least, if the legislature has chosen to treat the two situations
differently, there is no justification, whatsoever, in my view, for a
Constitutional court, exercising jurisdiction under Article 226 of the
Constitution, to interfere with the view of the legislature, even if its
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sensitivities impel it to think otherwise.
137. For this reason, the emphasis, placed by learned Counsel for the
petitioners, on the fact that a decree for restitution of conjugal rights
can merely restitute consortium and cohabitation, and cannot include
any direction to the parties to have sex, is completely off the point.
The impugned Exception does not seek, directly or indirectly, to
enforce a non-enforceable conjugal right, or even a conjugal
expectation. The existence of such a conjugal expectation, to normal
sexual relations, read with the unique relationship of marriage,
however, provides an intelligible differentia, having a rational nexus
to the object of the impugned Exception, as well as to the object of
Section 375 itself. The extent to which a decree for restitution of
conjugal rights can extend, or can be enforced is not, therefore, a
legitimate consideration, in assessing the constitutionality of the
impugned Exception.
Is the impugned Exception arbitrary?
138. Learned Counsel for the petitioners also contended that the
frontiers of Article 14, with the development of the law, have
expanded beyond mere discrimination, and that any act, whether it be
of the legislature or of the executive, which is "arbitrary" infracts
Article 14. By this standard, learned Counsel contended that the
impugned Exception, in excepting husbands, who have non-
consensual sex with their wives, from the rigour of "rape", is arbitrary.
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139. Invidious discrimination and arbitrariness, as considerations that
would render a legislative, or executive, act unconstitutional, actually
overlap to some degree. Though "arbitrariness", as a jurisprudential
concept, may have myriad complexions and contours, the Supreme
Court, in Sharma Transport v. Govt of A.P.91, defines the expression
"arbitrarily" as meaning an "act done in an unreasonable manner, as
fixed or done capriciously or at pleasure, without adequate
determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgement,
depending on the will alone". The manner in which the considerations
of arbitrariness and invidious discrimination, vis-à-vis Article 14 of
the Constitution, dovetail into one another, is well explained in the
following passage from the well-known decision of the Supreme
Court in R.K. Garg v. U.O.I.92:
"That takes us to the principal question arising in the writ
petitions namely, whether the provisions of the Act are
violative of Article 14 of the Constitution. The true scope and
ambit of Article 14 has been the subject-matter of discussion
in numerous decisions of this Court and the propositions
applicable to cases arising under that Article have been
repeated so many times during the last thirty years that they
now sound platitudinous. The latest and most complete
exposition of the propositions relating to the applicability of
Article 14 as emerging from "the avalanche of cases which
have flooded this Court" since the commencement of the
Constitution is to be found in the judgment of one of us
(Chandrachud, J., as he then was) in In re The Special Courts
Bill, 197893 . It not only contains a lucid statement of the
propositions arising under Article 14, but being a decision
given by a Bench of seven Judges of this Court, it is binding
upon us. That decision sets out several propositions
delineating the true scope and ambit of Article 14 but not all
91 (2002) 2 SCC 188
(1981) 4 SCC 675
(1979) 1 SCC 380
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of them are relevant for our purpose and hence we shall refer
only to those which have a direct bearing on the issue before
us. They clearly recognise that classification can be made for
the purpose of legislation but lay down that:
"1. The classification must not be arbitrary but must
be rational, that is to say, it must not only be based on
some qualities or characteristics which are to be found
in all the persons grouped together and not in others
who are left out but those qualities or characteristics
must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions
must be fulfilled, namely, (1) that the classification
must be founded on an intelligible differentia which
distinguishes those that are grouped together from
others and (2) that differentia must have a rational
relation to the object sought to be achieved by the Act.
2. The differentia which is the basis of the
classification and the object of the Act are distinct
things and what is necessary is that there must be a
nexus between them. In short, while Article 14 forbids
class discrimination by conferring privileges or
imposing liabilities upon persons arbitrarily selected
out of a large number of other persons similarly
situated in relation to the privileges sought to be
conferred or the liabilities proposed to be imposed, it
does not forbid classification for the purpose of
legislation, provided such classification is not
arbitrary in the sense above mentioned."
It is clear that Article 14 does not forbid reasonable
classification of persons, objects and transactions by the
legislature for the purpose of attaining specific ends. What is
necessary in order to pass the test of permissible classification
under Article 14 is that the classification must not be
"arbitrary, artificial or evasive" but must be based on some
real and substantial distinction bearing a just and reasonable
relation to the object sought to be achieved by the legislature.
The question to which we must therefore address ourselves is
whether the classification made by the Act in the present case
satisfies the aforesaid test or it is arbitrary and irrational and
hence violative of the equal protection clause in Article 14."
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Arbitrariness, as an abstract concept, cannot, therefore, constitute the
basis for striking down a legislative provision as unconstitutional, or
as violative of Article 14. It has to be remembered that Article 14,
after all, pertains to a fundamental right to equality. If a provision is
to be struck down as violative of Article 14 on the ground that it is
arbitrary, therefore, the arbitrariness must be in relation to the manner
in which it creates a distinction between persons or things who appear,
otherwise, to be similarly situated. It is for this reason that, in In re.
Natural Resources Allocation94 and State of M.P. v. Rakesh Kohli95,
the Supreme Court holds that the law may not be struck down merely
on the ground that it is arbitrary; it is also necessary to establish that it
is constitutionally infirm. Else, the concept of "arbitrariness" may
lead to a perplexing degree of subjectivity. What may appear to be
arbitrary to one may not appear arbitrary to another - the present case
being a stellar example. There are no cut and dry indicia of
arbitrariness. If arbitrariness alone is to be the basis, the legislation
would become subject to the vagaries of judicial thinking. So long as
justice is administered by judges, and not automatons, arbitrariness
per se would, therefore, be too slender a thread on which to hang a
statutory provision, in order to test its constitutionality.
140. In this context, the following declaration of the legal position, to
be found in para 11 of the judgement of the Supreme Court in
Ameerunnissa Begum v. Mahboob Begum96 , which recognises the
94 (2012) 10 SCC 1
(2012) 6 SCC 312
AIR 1953 SC 91
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arduous nature of the task faced by the legislature, and the latitude
enjoyed by the legislature in classifying persons, objects or situations
differently, requires to be noticed:
"11. The nature and scope of the guarantee that is implied in
the equal protection clause of the Constitution have been
explained and discussed in more than one decision of this
Court and do not require repetition. It is well settled that a
legislature which has to deal with diverse problems arising
out of an infinite variety of human relations must, of necessity,
have the power of making special laws to attain particular
objects; and for that purpose it must have large powers of
selection or classification of persons and things upon which
such laws are to operate. Mere differentiation or inequality of
treatment does not per so amount to discrimination within the
inhibition of the equal protection clause. To attract the
operation of the clause, it is necessary to show that the
selection or differentiation is unreasonable or arbitrary; that
it does not rest on any rational basis having regard to the
object which the legislature has in view."
(Emphasis supplied)
The statement of the law contained in the afore extracted passage from
Ameerunnissa Begum96 may well be regarded as Article 14 in its
ultimate distilled form, purified of all extraneous impurities and
considerations. The Court, seized with a challenge to a statutory
provision as unconstitutional on the ground that it violates Article 14,
is required to remain acutely conscious, at all times, of the nature of
the task before the legislature, democratically elected, and the latitude
that the law grants it, to classify persons, situations and objects
differently. The fact that such a classification is made is no ground,
therefore, for a Court to tinker with it. The mere fact that persons are
treated differently or unequally, is not, per se discriminatory. What
has to be established is that the differentiating factor is non-existent,
or that, even if it exists, it bears no rational nexus to the object sought
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to be achieved by the statutory provision concerned.
141. In this, the Court is also required to keep in mind the distinction
between the object sought to be achieved by the statutory provision
and the rationale for the object. With respect to the impugned
Exception, this distinction is important. The object sought to be
achieved by the impugned Exception is transparently obvious even
from the Exception itself. It is to treat sex and sexual acts, between a
husband and wife, differently from such acts committed between
strangers, insofar as Section 375 is concerned. The rationale for this
object which, as originally envisaged by Macaulay, may have been
protection of the "conjugal rights of the husband" has evolved over a
period of time and, today, if the legislature hesitates from it,
admittedly, is to preserve the marital institution. The contention, of
Ms. Nundy, that such an object is illegal is, to my mind, with respect,
absurd, and merits outright rejection. She has, in this context, cited
para 74 of the report in Independent Thought1 and para 212 of the
report in Joseph Shine6. I cannot agree. Independent Thought1,
expressly (as would be discussed at greater length later in this
judgement) was examining the issue of whether preservation of the
marital institution was a justification in the case of marriage with a
girl child who, statutorily, was even incapable of giving meaningful
consent. It was in the backdrop of the unique dynamics of the
constitutional duty to preserve and protect the girl child that the
observations in Independent Thought1 were returned. Joseph Shine6,
too, dealt with the legitimacy of punishing adultery as a crime, given
the decision right of a wife to decide on her sexual partner. Neither of
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these cases, therefore, dealt with the issue of whether introduction,
within the matrimonial ambit, of the concept of "rape", would imperil
its sustenance as an institution of pre-eminent socio-legal importance,
the preservation of which is a constitutional imperative. The issue
before us is sui generis, and reliance on judgements which did not deal
with it can hardly help.
142. Preservation of the marital institution is in eminent public and
societal interest, and it is preposterous to contend that such an object is
not legal. The decisions of the Supreme Court that expound on
marriage, cited supra, bear testimony to this legal position. If
preservation of the marital institution is the object of the impugned
Exception, to my mind, extending, to non-consensual sexual acts
committed within marriage, a treatment different from that extended to
non-consensual sexual acts committed outside marriage, clearly bears
a rational nexus to the object.
143. That there is an intelligible differentia between the two
situations, learned Counsel for the petitioners themselves
acknowledge. Once, thus, there is an intelligible differentia, a legal
object that the impugned Exception seeks to achieve, and a rational
nexus between the differentia and the object, the scope of the enquiry
by the Court ends there. It is not open to a Court to examine, further,
whether the object of the legislation is sufficient to justify the
differentia. A writ Court, venturing into that territory, would clearly
be exceeding the boundaries of its authority under Article 226. That is
an arena in which the legislature must be freely allowed to peregrinate
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as, else, the task of legislation would become well-nigh impossible to
discharge. Once the legislature adopts the view that there is an object
X that it seeks to achieve (protection of the marital institution), which
is legal, and that, in order to achieve that object, it seeks to distinguish
between A and B, if the distinction thus drawn between A and B (on
the basis of marriage) has a rational nexus with object X, the
legislation is ipso facto intra vires. The Court cannot proceed to
enquire any further into the matter. The Court cannot tell the
legislature, "Though you feel that treating non-consensual sex
between husband and wife as rape would threaten the marital
institution, we do not think so." Else, the distinction between the
legislature and the judiciary would stand obliterated, which would
imperil, near fatally, in turn, the principle of separation of powers on
which our democratic edifice stands. In this context, the following
passages from Aravali Golf Club v. Chander Hass97 are amply
evocative of the legal position:
"17. Before parting with this case we would like to make
some observations about the limits of the powers of the
judiciary. We are compelled to make these observations
because we are repeatedly coming across cases where judges
are unjustifiably trying to perform executive or legislative
functions. In our opinion this is clearly unconstitutional. In
the name of judicial activism judges cannot cross their limits
and try to take over functions which belong to another organ
of the State.
18. Judges must exercise judicial restraint and must not
encroach into the executive or legislative domain, vide Indian
Drugs & Pharmaceuticals Ltd. v. Workmen98 and S.C.
Chandra v. State of Jharkhand99.
97 (2008) 1 SCC 683
(2007) 1 SCC 408
(2007) 8 SCC 279
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19. Under our Constitution, the legislature, the executive
and the judiciary all have their own broad spheres of
operation. Ordinarily it is not proper for any of these three
organs of the State to encroach upon the domain of another,
otherwise the delicate balance in the Constitution will be
upset, and there will be a reaction.
20. Judges must know their limits and must not try to run
the Government. They must have modesty and humility, and
not behave like emperors. There is broad separation of powers
under the Constitution and each organ of the State -the
legislature, the executive and the judiciary - must have
respect for the other and must not encroach into each other's
domains.
21. The theory of separation of powers first propounded by
the French thinker Montesquieu (in his book The Spirit of
Laws) broadly holds the field in India too. In Chapter XI of
his book The Spirit of Laws Montesquieu writes:
"When the legislative and executive powers are united
in the same person, or in the same body of Magistrates,
there can be no liberty; because apprehensions may
arise, lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical
manner.
Again, there is no liberty, if the judicial power be not
separated from the legislative and executive. Were it
joined with the legislative, the life and liberty of the
subject would be exposed to arbitrary control; for the
judge would be then the legislator. Were it joined to
the executive power, the judge might behave with
violence and oppression.
There would be an end of everything, were the same
man or the same body, whether of the nobles or of the
people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of
trying the causes of individuals."
(emphasis supplied)
We fully agree with the view expressed above. Montesquieu's
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warning in the passage abovequoted is particularly apt and
timely for the Indian judiciary today, since very often it is
rightly criticised for "overreach" and encroachment into the
domain of the other two organs.
23. In Ram Jawaya Kapur v. State of Punjab100 a
Constitution Bench of this Court observed :
"12. ... The Indian Constitution has not indeed
recognised the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts
or branches of the Government have been sufficiently
differentiated and consequently it can very well be said
that our Constitution does not contemplate assumption,
by one organ or part of the State, of functions that
essentially belong to another."
(emphasis supplied)
24. Similarly, in Asif Hameed v. State of J & K101 a three-
Judge Bench of this Court observed : (SCC pp. 373-74, paras
17-19)
"17. Before adverting to the controversy directly
involved in these appeals we may have a fresh look at
the inter se functioning of the three organs of
democracy under our Constitution. Although the
doctrine of separation of powers has not been
recognised under the Constitution in its absolute
rigidity but the Constitution makers have meticulously
defined the functions of various organs of the State.
Legislature, executive and judiciary have to function
within their own spheres demarcated under the
Constitution. No organ can usurp the functions
assigned to another. The Constitution trusts to the
judgment of these organs to function and exercise their
discretion by strictly following the procedure
prescribed therein. The functioning of democracy
depends upon the strength and independence of each of
its organs. Legislature and executive, the two facets of
people's will, they have all the powers including that of
finance. Judiciary has no power over sword or the
AIR 1955 SC 549
1989 Supp (2) SCC 364
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purse nonetheless it has power to ensure that the
aforesaid two main organs of State function within the
constitutional limits. It is the sentinel of democracy.
Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the legislature
and executive. The expanding horizon of judicial
review has taken in its fold the concept of social and
economic justice. While exercise of powers by the
legislature and executive is subject to judicial restraint,
the only check on our own exercise of power is the
self-imposed discipline of judicial restraint.
18. Frankfurter, J. of the US Supreme Court
dissenting in the controversial expatriation case
of Trop v. Dulles102 observed as under : (US pp. 119-
20)
'... All power is, in Madison's phrase, "of an
encroaching nature". Judicial power is not
immune against this human weakness. It also
must be on guard against encroaching beyond
its proper bounds, and not the less so since the
only restraint upon it is self-restraint....
Rigorous observance of the difference between limits of
power and wise exercise of power - between questions of
authority and questions of prudence -requires the most alert
appreciation of this decisive but subtle relationship of two
concepts that too easily coalesce. No less does it require a
disciplined will to adhere to the difference. It is not easy to
stand aloof and allow want of wisdom to prevail, to disregard
one's own strongly held view of what is wise in the conduct of
affairs. But it is not the business of this Court to pronounce
policy. It must observe a fastidious regard for limitations on
its own power, and this precludes the Court's giving effect to
its own notions of what is wise or politic. That self-restraint is
of the essence in the observance of the judicial oath, for the
Constitution has not authorised the Judges to sit in judgment
on the wisdom of what Congress and the executive branch
do.'
19. When a State action is challenged, the function of the
356 US 86 : 2 L Ed 2d 630 (1958)
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court is to examine the action in accordance with law and to
determine whether the legislature or the executive has acted
within the powers and functions assigned under the
Constitution and if not, the court must strike down the action.
While doing so the court must remain within its self-imposed
limits. The court sits in judgment on the action of a coordinate
branch of the Government. While exercising power of judicial
review of administrative action, the court is not an appellate
authority. The Constitution does not permit the court to direct
or advise the executive in matters of policy or to sermonise
qua any matter which under the Constitution lies within the
sphere of legislature or executive, provided these authorities
do not transgress their constitutional limits or statutory
powers."
(Emphasis supplied)
31. If the legislature or the executive are not functioning
properly it is for the people to correct the defects by
exercising their franchise properly in the next elections and
voting for candidates who will fulfil their expectations, or by
other lawful methods e.g. peaceful demonstrations. The
remedy is not in the judiciary taking over the legislative or
executive functions, because that will not only violate the
delicate balance of power enshrined in the Constitution, but
also the judiciary has neither the expertise nor the resources to
perform these functions.
33. Judicial restraint is consistent with and complementary
to the balance of power among the three independent branches
of the State. It accomplishes this in two ways. First, judicial
restraint not only recognises the equality of the other two
branches with the judiciary, it also fosters that equality by
minimising inter-branch interference by the judiciary. In this
analysis, judicial restraint may also be called judicial respect,
that is, respect by the judiciary for the other coequal branches.
In contrast, judicial activism's unpredictable results make the
judiciary a moving target and thus decreases the ability to
maintain equality with the co-branches. Restraint stabilises
the judiciary so that it may better function in a system of
inter-branch equality.
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35. The constitutional trade-off for independence is that
judges must restrain themselves from the areas reserved to the
other separate branches. Thus, judicial restraint complements
the twin, overarching values of the independence of the
judiciary and the separation of powers."
144. One may also refer, in this context, to the following
illuminating passage from Chiranjit Lal Chowdhury 66:
"86. The only other ground on which the Ordinance and the
Act have been challenged is that they infringe the
fundamental rights guaranteed by Article 14 of the
Constitution. "Equal protection of the laws", as observed by
Day, J. in Southern Railway Company v. Greene103 "means
subjection to equal laws, applying alike to all in the same
situation". The inhibition of the article that the State shall not
deny to any person equality before the law or the equal
protection of the laws was designed to protect all persons
against legislative discrimination amongst equals and to
prevent any person or class of persons from being singled out
as a special subject for discriminating and hostile legislation.
It does not, however, mean that every law must have universal
application, for all persons are not, by nature, attainment or
circumstances, in the same position. The varying needs of
different classes of persons often require separate treatment
and it is, therefore, established by judicial decisions that the
equal protection clause of the Fourteenth Amendment of the
American Constitution does not take away from the State the
power to classify persons for legislative purposes. This
classification may be on different bases. It may be
geographical or according to objects or occupations or the
like. If law deals equally with all of a certain well-defined
class it is not obnoxious and it is not open to the charge of a
denial of equal protection on the ground that it has no
application to other persons, for the class for whom the law
has been made is different from other persons and, therefore,
there is no discrimination amongst equals. It is plain that
every classification is in some degree likely to produce some
inequality, but mere production of inequality is not by itself
enough. The inequality produced, in order to encounter the
challenge of the Constitution, must be "actually and palpably
216 US 400
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unreasonable and arbitrary". Said Day, J. in Southern
Railway Company v. Greene104 "While reasonable
classification is permitted, without doing violence to the equal
protection of the laws, such classification must be based upon
some real and substantial distinction, bearing a reasonable
and just relation to the things in respect to which such
classification is imposed; and the classification cannot be
arbitrarily made without any substantial basis. Arbitrary
selection, it has been said, cannot be justified by calling it
classification". Quite conceivably there may be a law relating
to a single individual if it is made apparent that, on account of
some special reasons applicable only to him and inapplicable
to anyone else, that single individual is a class by himself.
In Middleton v. Texas Power and Light Company105 it was
pointed out that there was a strong presumption that a
legislature understood and correctly appreciated the needs of
its own people, that its laws were directed to problems made
manifest by experience and that the discriminations were
based upon adequate grounds. It was also pointed out in that
case that the burden was upon him who attacked a law for
unconstitutionality. In Lindsley v. Natural Carbonic Gas
Company106 it was also said that one who assailed the
classification made in a law must carry the burden of showing
that it did not rest upon any reasonable basis but was
essentially arbitrary. If there is a classification, the Court will
not hold it invalid merely because the law might have been
extended to other persons who in some respects might
resemble the class for which the law was made, for the
legislature is the best judge of the needs of the particular
classes and to estimate the degree of evil so as to adjust its
legislation according to the exigency found to exist. If,
however, there is, on the face of the statute, no classification
at all or none on the basis of any apparent difference
specially peculiar to any particular individual or class and
not applicable to any other person or class of persons and yet
the law hits only the particular individual or class it is
nothing but an attempt to arbitrarily single out an individual
or class for discriminating and hostile legislation. The
presumption in favour of the legislature cannot in such a case
be legitimately stretched so as to throw the impossible onus
104 220 US 61
249 US 152
220 US 61
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on the complainant to prove affirmatively that there are other
individuals or class of individuals who also possess the
precise amount of the identical qualities which are attributed
to him so as to form a class with him. As pointed out by
Brewer, J. in the Gulf, Colorado and Santa
Fe'Railway v. W.H. Ellis107 while good faith and a
knowledge of existing conditions on the part of a legislature
was to be presumed, yet to carry that presumption to the
extent of always holding that there must be some undisclosed
and unknown reason for subjecting certain individuals or
corporations to hostile and discriminating legislation was to
make the protecting clause a mere rope of sand, in no manner
restraining State action."
This judgement, again, emphasises and underscores the manner in
which arbitrariness and invidious discrimination, as considerations to
strike down a statutory provision, intermix. It also underscores the
necessary latitude that the legislature would always have, to classify
persons and situations differently, for the applicability of law, and
delineates the task of the Court seized with the issue of determining
the constitutionality of such classification. When such classification
would merit judicial interference stands tellingly exposited in the
following passage from State of W.B. v. Anwar Ali Sarkar108:
"44. It can be taken to be well settled that the principle
underlying the guarantee in Article 14 is not that the same
rules of law should be applicable to all persons within the
Indian territory or that the same remedies should be made
available to them irrespective of differences of circumstances
[(1950) SCR 869109] . It only means that all persons similarly
circumstanced shall be treated alike both in privileges
conferred and liabilities imposed [Old Dearborn Distributing
Co. v. Seagram Distillers Corporation110] . Equal laws would
have to be applied to all in the same situation, and there
should be no discrimination between one person and another
107 165 US 150
108 AIR 1952 SC 75
Charanjit Lal Chowdhury, ibid
299 US 183
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if as regards the subject-matter of the legislation their position
is substantially the same. This brings in the question of
classification. As there is no infringement of the equal
protection rule, if the law deals alike with all of a certain
class, the legislature has the undoubted right of classifying
persons and placing those whose conditions are substantially
similar under the same rule of law, while applying different
rules to persons differently situated. It is said that the entire
problem under the equal protection clause is one of
classification or of drawing lines [ Vide Dowling - Cases on
Constitution Law, 4th edn. 1139]. In making the classification
the legislature cannot certainly be expected to provide
"abstract symmetry". It can make and set apart the classes
according to the needs and exigencies of the society and as
suggested by experience. It can recognise even "degrees of
evil". [Vide Skinner v. Oklahoma111], but the classification
should never be arbitrary, artificial or evasive. It must rest
always upon real and substantial distinction bearing a
reasonable and just relation to the thing in respect to which
the classification is made; and classification made without
any reasonable basis should be regarded as invalid
[Southern Railway Co. v. Greene104]."
(Emphasis Supplied)
The legislature is free, therefore, even while defining offences, to
recognise "degrees of evil". A classification based on the degree of
evil, which may otherwise be expressed as the extent of culpability,
would also, therefore, be valid. It is only a classification which is
made without any reasonable basis which should be regarded as
invalid. While the Court may examine whether the basis of
classification is reasonable, once it is found to be so, the right of the
legislature to classify has to be respected. Where there is no
discernible basis for classification, however, or where the basis,
though discernible, is unreasonable or otherwise unconstitutional, the
provision would perish.
316 US 535
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145. More recently, the following passage from K. Thimmappa v.
Chairman, Central Board of Directors, SBI112 expresses much the
same sentiment, thus:
"3. ... Before we deal with the respective contentions of
the parties it would be appropriate for us to notice that what
Article 14 prohibits is class legislation and not reasonable
classification for the purpose of legislation. If the rule-making
authority takes care to reasonably classify persons for a
particular purpose and if it deals equally with all persons
belonging to a well-defined class then it would not be open to
the charge of discrimination. But to pass the test of
permissible classification two conditions must be fulfilled:
(a) that the classification must be founded on an
intelligible differentia which distinguishes persons or
things which are grouped together from others left out
of the group; and
(b) that the differentia must have a rational relation
to the object sought to be achieved by the statute in
question.
The classification may be founded on different basis and what
is necessary is that there must be a nexus between the basis of
classification and the object under consideration. Article 14
of the Constitution does not insist that the classification
should be scientifically perfect and a court would not
interfere unless the alleged classification results in apparent
inequality. When a law is challenged to be discriminatory
essentially on the ground that it denies equal treatment or
protection, the question for determination by court is not
whether it has resulted in inequality but whether there is some
difference which bears a just and reasonable relation to the
object of legislation. Mere differentiation does not per se
amount to discrimination within the inhibition of the equal
protection clause. To attract the operation of the clause it is
necessary to show that the selection or differentiation is
unreasonable or arbitrary; that it does not rest on any
(2001) 2 SCC 259
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rational basis having regard to the object which the
legislature has in view. If a law deals with members of a well-
defined class then it is not obnoxious and it is not open to the
charge of denial of equal protection on the ground that it has
no application to other persons. It is for the rule-making
authority to determine what categories of persons would
embrace within the scope of the rule and merely because
some categories which would stand on the same footing as
those which are covered by the rule are left out would not
render the rule or the law enacted in any manner
discriminatory and violative of Article 14. It is not possible to
exhaust the circumstances or criteria which may afford a
reasonable basis for classification in all cases. It depends on
the object of the legislation, and what it really seeks to
achieve."
(Emphasis supplied)
Another perspective
146. View the matter from another angle. What does the impugned
Exception say? It says, in significantly omnibus terms and without
any caveat or condition attached, that sexual acts and sexual
intercourse, by a man with his wife, are not rape. It does not refer to
consent, or the lack of consent. It does not refer to force, pressure or
injury. It refers, plainly and simply, to "sexual acts and sexual
intercourse". Unlike judgments, every word used in a statute is to be
treated as deliberately and consciously used. The manner in which a
statutory provision is structured is of pre-eminent importance in
understanding the scope and ambit of the provision. Just as tautology,
and superfluity, can never be attributed to a legislative provision113,
equally, the omission, on the part of the legislature, to use a particular
expression which, otherwise, might have been expected to form part
(1975) 1 SCC 76
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of the provision, has also to be taken note of, as reflective of the
legislative intent. Where, therefore, the legislature has not used the
expression "non-consensual", "forced", or any other expression
indicating absence of willingness or consent, in the impugned
Exception, that omission has to be accorded its due significance. The
obvious intent of the legislature, in using the omnibus expression
"sexual intercourse and sexual acts", without referring to presence,
or absence, of consent, is to exclude, from the marital sphere, any
allegation of rape. Expressed otherwise, what the legislature intends,
quite clearly, is that an allegation of rape should find no place in a
relationship of marriage. The taint of rape, in other words, according
to the legislature, should never discolour a marital relationship
between man and woman.
147. Is this unconstitutional? Is it violative of Article 14? Where the
husband and wife are separated - even where they stay separately
even if in the same house - the legislature has, in Section 376B,
regarding non-consensual sexual intercourse as punishable and
applies, to it, the provisions of Section 375 mutatis mutandis. The
impugned Exception, therefore, applies to subsisting and surviving
marriages, where the husband and wife are together, and not
separated. In a subsisting, and surviving, marriage, where the husband
and wife are staying together and cohabiting, if the legislature feels
that an allegation of rape - and, consequently, the chance of the
husband being called a rapist - should find no place even if, on one
occasion or the other, the wife is compelled to have sex with the
husband without willingness or consent, can it be said that the
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legislature acts unconstitutionally? The distinction is made because of
the peculiar nature of the marital institution, and its unique contours
and demographics. It is for this reason that the legislature has
regarded the preservation of the marital institution as the raison d' etre
for continuing to retain the impugned Exception, despite several legal
luminaries advising against it. Viewed thus, it is apparent that the
impugned Exception, far from being unconstitutional, serves a
laudatory purpose, and is in pre-eminent public interest, aimed at
preservation of the marital institution, on which the entire bedrock of
society rests. Absent a subsisting and surviving marriage, neither
would learned Counsel have been here to argue the matter with the
proficiency they exhibited, nor would we be here to pass judgement
thereon.
148. The somewhat skewed angle from which learned Counsel who
opposed the continuance of the impugned Exception on the statute
book, view the legal position, is apparent from the submission of Ms.
Nundy that Article 14 stands violated by the impugned Exception as it
provides immunity from prosecution for rape to a man who has
forcible sex with his wife, but not to a man who has forcible sex with
another woman. The proposition circles upon itself. A man who has
non-consensual, or even forcible, sex with his wife, is not prosecuted
for it is precisely because the offence is not rape, statutorily. One
cannot be prosecuted for what is not an offence. In exempting a man
who has forcible, or non-consensual, sex with his wife, from being
prosecuted for rape, therefore, the extant statutory position is merely
being implemented. It is not, therefore, as though the two men are
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being treated unequally. One has committed a statutory offence, ergo
he is prosecuted; the other has not, ergo he is not.
149. Again, the submission proceeds on the principle - which,
learned Counsel for the petitioners apparently feel is not open to
debate - that if the act of forcible, or non-consensual, sex by a man
with a woman is necessarily rape. If it were so, then, undoubtedly,
any provision which accepts a person from being prosecuted for
having committed an offence would, ex facie, be arbitrary. Where the
learned Counsel for the petitioners err in their submission is in the
presumption that every act of non-consensual, or forced, sex by a man
with a woman has necessarily to be regarded as rape. The moment
learned Counsel proceed on this premise, the controversy in issue in
the case before us, and the challenge laid in the petition is immediately
brushed aside, for the simple reason that, if non-consensual, or forced,
sex between a man and woman is rape, the impugned Exception,
which says that it is not, is already regarded as illegal. The issue in
controversy before us, then, does not survive for consideration, and
the dialogue takes off on a tangent which has nothing to do with the
lis. By proceeding on this fundamentally erroneous premise, learned
Counsel for the petitioners conveniently avoid the issue which actually
falls for decision, viz., whether, in treating sex and sexual acts by a
husband with his wife is not rape, the legislature has acted illegally or
arbitrarily.
150. I am constrained to observe that, from the very commencement
of proceedings in this matter before this Bench, I attempted to
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repeatedly suggest to learned Counsel for the petitioners, both amici
and the petitioner's Counsel, that the discussion that was taking place
at the Bar had really little to do with the controversy at hand. There
was, I must state, scant discussion on the precise issue before us,
which is whether, in carving out an exception, from the offence of
rape, to sexual acts committed within marriage, the legislature has, or
has not, acted unconstitutionally. I also attempted to point out that
there was, clearly, an intelligible differentia in the sexual relations,
and the sexual equation, between a man and a woman who are not
married, and between a man and woman who are married, and sought
to elicit submissions from Counsel as to how, in view of the existence
of such intelligible differentia - the existence of which Ms. Nundy
has, in her written submissions, belatedly conceded - the legislature
could be said to have acted unconstitutionally in treating non-
consensual sexual acts committed within marriage differently from
non-consensual sexual acts committed outside marriage. I have yet to
obtain a satisfactory answer.
151. The foregoing discussion also demonstrates the fallibility in the
submission, of learned Counsel for the petitioners, that, as it defeats
the object of Section 375, of criminalising rape, the impugned
Exception is arbitrary. The contention is obviously incorrect. Once
again, it proceeds on the erroneous premise that a husband, in having
sex with his wife without her consent, has committed rape; ergo,
contend learned Counsel, in exempting the husband from prosecution
for rape - which he has committed - the impugned Exception is
unconstitutional. The submission is so fundamentally illogical that
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one finds oneself at a loss as to how to deal with it. It glosses over the
fact that the impugned Exception is precisely that, i.e. an exception to
Section 375. It, therefore, excepts the applicability of the main part of
Section 375, in the situation envisaged by the Exception. It is futile to
contend that, as it is contrary to the main provision, an Exception is
unconstitutional, for every Exception is intended to refer to a situation
in which the main provision would not apply. It is only, therefore,
where the Exception, when applied, operates against the object of the
main provision, or nullifies the applicability of the main provision
altogether, that the Exception can be treated as unconstitutional on that
ground. The impugned Exception 2 to Section 375 states that sexual
intercourse and sexual acts by a husband with his wife are not rape.
Its validity cannot be tested, therefore, by presuming that the act is
rape, which appears to be the fundamental premise on which learned
Counsel for the petitioners substantially rest their case. What has to
be seen is as to whether, in excepting sexual intercourse and sexual
acts by a husband with his wife from Section 375, the impugned
Exception is unconstitutional. It is completely illogical, therefore, to
contend that the impugned Exception defeats the object of the main
part of Section 375, which seeks to criminalise rape, for the simple
reason that the impugned Exception states that the acts envisaged
therein are not rape.
152. The object of Section 375 is, no doubt, criminalisation of rape.
'Rape', as defined in Section 375, refers to the sexual acts envisaged
therein, done in any of the circumstances covered by "firstly" to
"seventhly". Section 375, necessarily, has to be read with Section
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376, as Section 376 stipulates the punishment for the offence covered
by Section 375. Read in conjunction, Section 375 and 376 provide for
punishment of persons who commit rape. 'Rape' relates to non-
consensual sexual acts, of the kind referred to in Section 375. I have
already opined, earlier, that there is an intelligible differentia between
sexual acts committed within the confines of marriage, vis-à-vis
sexual acts committed between strangers. This differentia does not
stand diluted merely because the act is non-consensual. Once such a
differentia is found to exist, and the differentia is predicated on the sui
generis nature of the relationship between the wife and the husband, in
excepting acts done within such a relationship from the rigour of rape,
the impugned Exception actually fosters and furthers the object of
Section 375, which is to punish a grossly criminal act, that
compromises the sexual autonomy and integrity of a woman. It
cannot be forgotten that a fixation of the label of 'rapist' attaches, to a
man, a stigma that lasts to his dying day. Where the man is the
husband of the woman concerned, and the two are in a subsisting
marital relationship, staying together, excepting the man from the
possibility of being so labelled, in fact, subserves the object and
intendment of Section 375.
153. The approach of the legislature on this issue, in enacting and
continuing to retain, on the statute book, the impugned Exception 2 to
Section 375, is not open to judicial reappraisement. A Court may
differ in its view; that cannot, however, be a basis to overturn the
legislative perception, which represents the perception of the entire
national populace. In fact, treating a husband, and a stranger, who
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commit such an act, on an equal footing, would amount to equalising
of unequals which, too, it is trite, infracts Article 14.
154. Yet another ground on which it is sought to be contended that
the impugned Exception is arbitrary is that it exempts husbands who
commit gross acts of sexual violence against their wives. Ms. Nundy
submits, in this regard, that exempting such acts from the ambit of
'rape' cannot ever be regarded as subserving the object either of the
impugned Exception or of Section 375. Nor, she submits, can it be
said to foster the 'conjugal rights' of the husband.
155. This argument, too, is fallacious. The impugned Exception
operates in an omnibus fashion, to all acts covered by Section 375. It
does not condone such acts. It merely states that such acts, if
committed within marriage, would not be 'rape'. The submission, in
fact, overlooks the main concept behind Section 375. At the cost of
repetition, Section 375 covers all acts, from a single act of unwilling
sex to gross perversion. They are all covered under one umbrella.
Even the grossest of acts envisaged by the first part of Section 375,
would not amount to 'rape', if it does not fall within one of the
circumstances stipulated in clauses "firstly" to "seventhly" in the
provision; broadly, if it were consensual. Ms. Nundy refers to
insertion of objects in the body of the woman, and requiring the
woman to have sex with third persons. Viewed any which way, these
are, undoubtedly, acts of gross perversion. That said, if they take
place with the consent of the woman, they are not 'rape' under Section
375. Nothing substantial can, therefore, result in favour of the stand
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adopted by learned Counsel for the petitioners, by emphasising gross
acts covered by Section 375. Whatever be the nature of the act, the
guiding philosophy behind Section 375 is, quite obviously,
recognition of the sexual autonomy of the woman and her power of
choice, and penalising the man who violates that autonomy or that
right of choice, by charging him with rape and labelling him a rapist.
If, therefore, the legislature desires to exempt, from the rigour of such
a charge, and such a label, husbands, vis-à-vis their wives, given the
intelligible differentia that exists in a marital relationship vis-à-vis
other relationships, it is not open to a Court, exercising jurisdiction
under Article 226 of the Constitution, to sit in appeal over the decision
and proclaim that acts committed by husbands vis-à-vis wives, if they
otherwise conform to the main part of Section 375, should be rape.
The approach of the Court
156. It merits repetition that this Court cannot approach the issue
before it with a view of pronouncing on whether non-consensual sex
within marriage ought to be punished, or not, and, if it feels that it
should, find a way of doing so. That is exclusively the province of the
legislature. We are concerned with the vires, and the constitutional
validity of the impugned Exception 2 to Section 375, and with nothing
more. If the provision is intra vires, it would be upheld; if ultra vires,
it would be quashed.
157. I may extend to the principle further. If the result of upholding
the impugned Exception, applying the well settled principles
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governing testing of constitutionality of statutes, is that an act which,
according to the Court, ought to be criminally punished as rape, ends
up as not being so punished, that is entirely irrelevant, as a
consideration for the Court examining the issue. The subjective view
of a Court that an act bears criminal character, and ought to be
criminally punished, is no ground for it to strike down the legislative
provision, by operation of which the act is not so punishable. If it
does so, it completely effaces and obliterates the distinction between
the legislature and the judiciary. At the highest, all that the Court can
do in such a situation, is to recommend, to the legislature, to take a
view in the matter, setting out what, in the perception of the Court, is
the right approach. The legislature would not be bound to agree with
the Court, or to follow the view suggested, for the simple reason that
the legislature is a microcosm of the 130 crores that constitute the
populace of the country, and represents their collective will and
wisdom. It is not permissible for one person, or even a number of
persons, clothed in silken robes, to superimpose their will and wisdom
over the will and wisdom of the proletariat, as represented by the
members of the legislature.
Consent and the 'effect doctrine'
158. At this juncture, I deem it appropriate to deal with the
submission, of learned Counsel for the petitioners, that the impugned
Exception compromises on the wife's right to consent, or to refuse
consent, to her husband's request for sex. Learned Counsel have
sought to contend that, even if the impugned Exception does not
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expressly refer to the aspect of consent as one of the fundamental
aspects of the offence of rape, it effectively nullifies, and abrogates,
the right of the wife to say no, or to say yes. To bring this point home,
learned Counsel have emphasised the fact that, while assessing the
constitutionality of a statutory provision, the Court is required to
examine not just the provision as empirically worded, but the effect of
the provision in practical application. If the effect of the provision is
to violate the fundamental rights of individuals, learned Counsel
submitted that the provision becomes unconstitutional. For this
purpose, they have cited Puttaswamy42.
159. Puttaswamy42, overruling the earlier view expressed in A.K.
Gopalan v. State of Madras114, clearly holds that, in assessing the
constitutionality of a statutory provision, the Court is not required to
restrict itself to the wording of the provision, or even to its objects and
reasons, but is also required to examine the effect of the provision, in
practical application. If, therefore, a statutory provision operates
unconstitutionally, or, in its operation, derogates from the fundamental
rights of citizens, it would be unconstitutional. To that extent, the
submission of learned Counsel for the petitioners is unexceptionable.
160. In so emphasising the effect of a statutory provision, as a
consideration to be borne in mind while assessing its constitutionality,
Puttaswamy42 effectively reiterates what was held, as far back as in
1978, in Maneka Gandhi v. U.O.I.115 which, in turn, relied on earlier
leading authorities on the point, starting with Express Newspapers (P)
AIR 1950 SC 27
(1978) 1 SCC 248
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Ltd v. U.O.I.116, through Sakal Papers (P) Ltd v. U.O.I.117, till the
Gopalan114 enunciation of the law finally met its Waterloo in R.C.
Cooper v. U.O.I.118 These decisions, however, clarified that what
mattered was the "direct and inevitable effect", as "intended by the
legislature", and not every distant consequence. Paras 17 to 20 of the
leading report in Maneka Gandhi115, authored by Bhagwati, J. (as he
then was), are of stellar significance:
"17. We think it would be proper at this stage to consider
the approach to be adopted by the Court in adjudging the
constitutionality of a statute on the touchstone of fundamental
rights. What is the test or yardstick to be applied for
determining whether a statute infringes a particular
fundamental right? The law on this point has undergone
radical change since the days of A.K. Gopalan case114 . That
was the earliest decision of this Court on the subject,
following almost immediately upon the commencement of the
Constitution. The argument which arose for consideration in
this case was that the preventive detention order results in the
detention of the applicant in a cell and hence it contravenes
the fundamental rights guaranteed under clauses (a), (b), (c),
(d), (e) and (g) of Article 19(1). This argument was negatived
by Kania, C.J., who pointed out that: "The true approach is
only to consider the directness of the legislation and not what
will be the result of the detention, otherwise valid, on the
mode of the detenue's life..... Any other construction put on
the article.... will be unreasonable." These observations were
quoted with approval by Patanjali Sastri, J., speaking on
behalf of the majority in Ram Singh v. State of Delhi119 [AIR
1951 SC 270 : 1951 SCR 451 : 52 Cri LJ 904] . There, the
detention of the petitioner was ordered with a view to
preventing him from making any speeches prejudicial to the
maintenance of public order and the argument was that the
order of detention was invalid as it infringed the right of free
speech and expression guaranteed under Article 19(1)(a). The
Court took the view that the direct object of the order was
116 AIR 1958 SC 578
117 AIR 1962 SC 305
(1970) 1 SCC 248
AIR 1951 SC 270
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preventive detention and not the infringement of the right of
freedom of speech and expression, which was merely
consequential upon the detention of the detenue and upheld
the validity of the order. The decision in A.K. Gopalan
case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] ,
followed by Ram Singh case [(1971) 3 SCC 864] , gave rise
to the theory that the object and form of State action
determine the extent of protection which may be claimed by
an individual and the validity of such action has to be judged
by considering whether it is "directly in respect of the subject
covered by any particular article of the Constitution or
touches the said article only incidentally or indirectly". The
test to be applied for determining the constitutional validity of
State action with reference to fundamental rights is : what is
the object of the authority in taking the action: what is the
subject-matter of the action and to which fundamental right
does it relate? This theory that "the extent of protection of
important guarantees, such as the liberty of person and right to
property, depend upon the form and object of the State action
and not upon its direct operation upon the individual's
freedom" held sway for a considerable time and was applied
in Naresh Shridhar Mirajkar v. State of Maharashtra120 to
sustain an order made by the High Court in a suit for
defamation prohibiting the publication of the evidence of a
witness. This Court, after referring to the observations of
Kania, C.J., in A.K. Gopalan case and noting that they were
approved by the Full Court in Ram Singh case pointed out
that the object of the impugned order was to give protection to
the witness in order to obtain true evidence in the case with a
view to do justice between the parties and if incidentally it
overrated to prevent the petitioner from reporting the
proceedings of the Court in the press, it could not be said to
contravene Article 19(1)(a).
18. But it is interesting to note that despite the observations
of Kania, C.J., in A.K. Gopalan case and the approval of
these observations in Ram Singh case there were two
decisions given by this Court prior to Mirajkar case which
seemed to deviate and strike a different note. The first was the
decision in Express Newspapers (P) Ltd. v. Union of
India116 where N.H. Bhagwati, J., speaking on behalf of the
Court, referred to the observations of Kania, C.J., in A.K.
AIR 1967 SC 1
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Gopalan case and the decision in Ram Singh case but
ultimately formulated the test of direct and inevitable effect
for the purpose of adjudging whether a statute offends a
particular fundamental right. The learned Judge pointed out
that all the consequences suggested on behalf of the
petitioners as flowing out of the Working Journalists
(Conditions of Service) and Miscellaneous Act, 1955, namely,
"the tendency to curtail circulation and thereby narrow the
scope of dissemination of information, fetters on the
petitioners' freedom to choose the means of exercising the
right, likelihood of the independence of the press being
undermined by having to seek government aid, the imposition
of penalty on the petitioners' right to choose the instruments
for exercising the freedom or compelling them to seek
alternative media etc.", would be remote and depend upon
various factors which may or may not come into play. "Unless
these were the direct or inevitable consequences of the
measures enacted in the impugned Act", said the learned
Judge, "it would not be possible to strike down the legislation
as having that effect and operation. A possible eventuality of
this type would not necessarily be the consequence which
could be in the contemplation of the legislature while enacting
a measure of this type for the benefit of the workmen
concerned". Then again, the learned Judge observed, ".... if
the intention or the proximate effect and operation of the Act
was such as to being it within the mischief of Article 19(1)(a),
it would certainly be liable to be struck down. The real
difficulty, however, in the way of the petitioners is that neither
the intention nor the effect and operation of the impugned Act
is to take away or abridge the right of freedom of speech and
expression enjoyed by the petitioners". Here we find the germ
of the doctrine of direct and inevitable effect, which
necessarily must be effect intended by the legislature, or in
other words, what may conveniently and appropriately be
described as the doctrine of intended and real effect. So also
in Sakal Papers (P) Ltd. v. Union of India117 while
considering the constitutional validity of the Newspaper
(Price and Page) Act, 1956 and Daily Newspaper (Price and
Page) Order, 1960, this Court applied the test of direct and
immediate effect. This Court, relying upon the decision
in Dwarkadas Shrinivas v. Sholapur Spinning & Weaving
Co. Ltd121 pointed out that "it is the substance and the
AIR 1954 SC 119
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practical result of the act of the State that should be
considered rather than its purely legal aspect" and "the correct
approach in such cases should be to enquire as to what in
substance is the loss or injury caused to the citizen and not
merely what manner and method has been adopted by the
State in placing the restriction". Since "the direct and
immediate effect of the order" would be to restrain a
newspaper from publishing any number of pages for carrying
its news and views, which it has a fundamental right under
Article 19(1)(a) to do, unless it raises the selling price as
provided in the Schedule to the Order, it was held by this
Court that the order was violative of the right of the
newspapers guaranteed by Article 19(1)(a). Here again, the
emphasis was on the direct and inevitable effect, of the
impugned action of the State rather than on its object and
form or subject-matter.
19. However, it was only R.C. Cooper case118 that the
doctrine that the object and form of the State action alone
determine the extent of protection that may be claimed by an
individual and that the effect of the State action on the
fundamental right of the individual is irrelevant, was finally
rejected. It may be pointed out that this doctrine is in
substance and reality nothing else than the test of pith and
substance which is applied for determining the
constitutionality of legislation where there is conflict of
legislative powers conferred on Federal and State Legislatures
with reference to legislative lists. The question which is asked
in such cases is: what is the pith and substance of the
legislations; if it "is within the express powers, then it is not
invalidated if incidentally it effects matters which are outside
the authorised field". Here also, on the application of this
doctrine, the question that is required to be considered is :
what is the pith and substance of the action of the State, or in
other words, what is its true nature and character; if it is in
respect of the subject covered by any particular fundamental
right, its validity must be judged only by reference to that
fundamental right and it is immaterial that it incidentally
affects another fundamental right. Mathew, J., in his
dissenting judgment in Bennett Coleman & Co. v. Union of
India122 recognised the likeness of this doctrine to the pith
and substance test and pointed out that "the pith and substance
(1972) 2 SCC 788
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test, although not strictly appropriate, might serve a useful
purpose" in determining whether the State action infringes a
particular fundamental right. But in R.C. Cooper case which
was a decision given by the full Court consisting of eleven
Judges, this doctrine was thrown overboard and it was pointed
out by Shah, J., speaking on behalf of the majority : (SCC pp.
288 & 290, paras 49, 50 & 55)
"...... it is not the object of the authority making the law
impairing the right of a citizen, nor the form of action
that determines the protection he can claim; it is the
effect of the law and of the action upon the right which
attract the jurisdiction of the Court to grant relief. If
this be the true view, and we think it is, in determining
the impact of State action upon constitutional
guarantees which are fundamental, it follows that the
extent of protection against impairment of a
fundamental right is determined not by the object of
the legislature nor by the form of the action, but by its
direct operation upon the individual's rights.
... We are of the view that the theory that the object and
form of the State action determine the extent of
protection which the aggrieved party may claim is not
consistent with the constitutional scheme......
In our judgment, the assumption in A.K. Gopalan
case that certain articles in the Constitution exclusively
deal with specific matters and in determining whether
there is infringement of the individual's guaranteed
rights, the object and the form of the State action alone
need be considered, and effect of the laws on
fundamental rights of the individuals in general will be
ignored cannot be accepted as correct".
The decision in R.C. Cooper case thus overturned the view
taken in A.K. Gopalan case and, as pointed out by Ray, J.,
speaking on behalf of the majority in Bennett Coleman
case it laid down two inter-related propositions, namely :
(SCC p. 812, para 41),
"First, it is not the object of the authority making the
law impairing the right of the citizen nor the form of
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action that determines the invasion of the right.
Secondly, it is the effect of the law and the action upon
the right which attracts the jurisdiction of the court to
grant relief. The direct operation of the Act upon the
rights forms the real test."
The decision in Bennett Coleman case followed upon R.C.
Cooper case and it is an important and significant decision,
since it elaborated and applied the thesis laid down in R.C.
Cooper case. The State action which was impugned
in Bennett Coleman case was newsprint policy which inter
alia imposed a maximum limit of ten pages for every
newspaper but without permitting the newspaper to increase
the number of pages by reducing circulation to meet its
requirement even within the admissible quota. These
restrictions were said to be violative of the right of free speech
and expression guaranteed under Article 19(1)(a) since their
direct and inevitable consequence was to limit the number of
pages which could be published by a newspaper to ten. The
argument of the Government was that the object of the
newsprint policy was rationing and equitable distribution of
imported newsprint which was scarce commodity and not
abridgement of freedom of speech and expression. The
subject-matter of the import policy was "rationing of imported
commodity and equitable distribution of newsprint" and the
newsprint policy did not directly and immediately deal with
the right mentioned in Article 19(1)(a) and hence there was
no violation of that article. This argument of the Government
was negatived by the majority in the following words (SCC p.
812, para 39):
"Mr Palkhivala said that the tests of pith and substance
of the subject-matter and of direct and of incidental
effect of the legislation are relevant to questions of
legislative competence but they are irrelevant to the
question of infringement of fundamental lights. In our
view this is a sound and correct approach to
interpretation of legislative measures and State action
in relation to fundamental rights. The true test is
whether the effect of the impugned action is to take
away or abridge fundamental rights. If it be assumed
that the direct object of the law or action has to be
direct abridgement of the right of free speech by the
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impugned law or action it is to be related to the
directness of effect and not to the directness of the
subject-matter of the impeached law or action. The
action may have a direct effect on a fundamental right
although its direct subject-matter may be different. A
law dealing directly with the Defence of India or
defamation may yet have a direct effect on the freedom
of speech. Article 19(2) could not have such law if the
restriction is unreasonable even if it is related to
matters mentioned therein. Therefore, the word 'direct'
would go to the quality or character of the effect and
not to the subject-matter. ..."
The majority took the view that it was not the object of the
newsprint policy or its subject-matter which was
determinative but its direct consequence or effect upon the
rights of the newspapers and since "the effect and
consequence of the impugned policy upon the newspapers"
was direct control and restriction of growth and circulation of
newspapers, the newsprint policy infringed freedom of speech
and expression and was hence violative of Article 19(1)(a).
The pith and substance theory was thus negatived in the
clearest term and the test applied was as to what is the direct
and inevitable consequence or effect of the impugned State
action on the fundamental right of the petitioner. It is possible
that in a given case the pith and substance of the State action
may deal with a particular fundamental right but its direct and
inevitable effect may be on another fundamental right and in
that case, the State action would have to meet the challenge of
the latter fundamental right. The pith and substance doctrine
looks only at the object and subject-matter of the State action,
but in testing the validity of the State action with reference to
fundamental rights, what the court must consider is the direct
and inevitable consequence of the State action. Otherwise, the
protection of the fundamental rights would be subtly but
surely eroded.
20. It may be recalled that the test formulated in R.C.
Cooper case merely refers to "direct operation" or 'direct
consequence and effect' of the State action on the
fundamental right of the petitioner and does not use the word
"inevitable" in this connection. But there can be no doubt, on
a reading of the relevant observations of Shah, J., that such
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was the test really intended to be laid down by the Court in
that case. If the test were merely of direct or indirect effect, it
would be an open-ended concept and in the absence of
operational criteria for judging "directness", it would give the
Court an unquantitiable discretion to decide whether in a
given case a consequence or effect is direct or not. Some other
concept-vehicle would be needed to quantify the extent of
directness or indirectness in order to apply the test. And that is
supplied by the criterion of "inevitable" consequence or effect
adumbrated in the Express Newspapers case. This criterion
helps to quantify the extent of directness necessary to
constitute infringement of a fundamental right. Now, if the
effect of State action on fundamental right is direct and
inevitable, then a fortiori it must be presumed to have been
intended by the authority taking the action and hence this
doctrine of direct and inevitable effect has been described by
some jurists as the doctrine of intended and real effect. This is
the test which must be applied for the purpose of determining
whether Section 10(3)(c) or the impugned order made under it
is violative of Article 19(1)(a) or (g)."
(Italics in original; underscoring supplied)
It is not, therefore, every perceived consequence, or effect, which
would be of relevance while examining the constitutionality of a
statutory provision. The Court is required to take into consideration
only those effects which are direct, inevitable, and within the
contemplation of the legislature when the provision was enacted.
161. Viewed thus, can it be said that the effect of the impugned
Exception is to nullify, abrogate, or even compromise the right of the
wife to refuse consent to sex?
162. Inherent in the object of Section 375, according to learned
Counsel for the petitioners, is the "foregrounding" of the entire law of
consent. Arguendo, assuming this to be the position, how does the
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impugned Exception, in its direct and inevitable effect, compromise
the right of the wife to consent, or refuse consent, to sexual relations
with her husband?
163. On this aspect, Ms. Nundy avers that the impugned Exception
"effectively nullifies consent to the specific acts of sexual
intercourse..." and that it "does give a license to husbands to force
sex". According to her, the impugned Exception does, "at the very
least, condone a situation where a man forces his wife to have sex by
calling it 'not rape' (which) is nothing more than a license for a
husband to force his wife into sexual intercourse without penal
consequences for rape". She further contends that "even with the
expectation or broad agreement of sexual relations in marriage,
specific consent for the sexual acts cannot be done away with". More
specifically, dealing with the aspect of consent, Ms. Nundy submits,
in the passage reproduced in para 103 supra, that the impugned
Exception (i) does not protect to the full extent of the law a woman's
non-consent, (ii) does not recognise the right of a married woman to
say no to sexual intercourse with her husband, (iii) takes away a
married woman's ability to say a joyful 'yes' to sexual intercourse"
and (iv) reduces, to a nullity, the wife's sexual desire and consent.
Mr. Rajshekhar Rao, in his submissions, contends that the impugned
Exception "decriminalises non-consensual intercourse by a husband
upon his wife". He seeks to point out that "every other woman,
including a woman who is socially perceived as of easy virtue, is
entitled to the aforesaid rights and entitled to decline consent and
prosecute for rape". As against this, according to Mr. Rao, "the effect
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of the Exception is to render the wife's consent immaterial inasmuch
as she cannot prosecute her husband for having non-consensual sexual
intercourse with her i.e., for the act of 'rape'." (This last contention
has already been disabused by me earlier; the impugned Exception
does not state, either expressly or by necessary implication, that the
wife is disentitled from prosecuting her husband for the act of rape,
for the simple reason that it states that the act itself would not be
rape.) Thereafter, Mr. Rao proceeds to echo the submissions
advanced by his colleagues, predicated on the premise that the
impugned Exception is founded on the Hale dictum, i.e. "the archaic
belief that the very act of marriage contemplates 'consent' by the wife
for sexual intercourse with a husband for all times to come, i.e.,
during the existence of the matrimonial relationship..." "Such a
presumption of consent", submits Mr. Rao, "is inconsistent with
applicable law". Ms. John submits that "the consequence of
Exception 2 to Section 375 necessarily results in a complete and
unequivocal disregard of the wife's right to consent to sex within a
marriage". Further, in her submissions, she states that the impugned
Exception, "in effect, accords immunity to a husband disregarding his
wife's non-consent".
164. Applying the effect doctrine, can it be said that the perceived
consequences of the impugned Exception, as outlined in para 160
supra, are the direct and inevitable effect of its operation?
165. Plainly read, it is clear that there is nothing in the impugned
Exception which obligates a wife to consent to having sex with her
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husband, wherever he so requests. All that it says is that sexual acts
by a husband with his wife are not rape. It does not even obliquely
refer to consent, or want of consent.
166. That, however, does not answer the issue, according to learned
Counsel for the petitioners. Examine the effect of a wife's refusing
consent, they exhort the court. Does the impugned Exception
"condone", in any manner, a husband forcing sex on his wife without
her consent? Does it say that a husband has a right to have sex with
his wife, whenever he desires, irrespective of whether she consents, or
does not consent, to the act? Does the impugned Exception control
the wife's decisional autonomy, in such a situation? Clearly, the
answer to all these questions has necessarily to be in the negative.
What the learned Counsel for the petitioners seek to urge is that,
somehow, by not regarding the act of the husband having sex with his
wife, without her will or consent, as 'rape' within the meaning of
Section 375, thereby making it punishable as rape under Section 376,
the impugned Exception condones the act and compromises on the
wife's right to grant, or refuse, consent. This contention, if it were to
be accepted, would require acceptance of the premise that, in the first
instance, the act of the husband in having sex with his wife against her
will or consent is rape, or should be regarded as rape, and, in the
second, that the impugned Exception restraints the victim-wife from
prosecuting her husband for having committed rape upon her. In
other words, the inability of the wife to prosecute her husband for rape
is treated, by learned Counsel for the petitioners, as compromising on
the wife's right to grant, or refuse, consent to a request for sex, when
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made by the husband. Learned Counsel for the petitioners would,
therefore, seek to contend that there is an inherent right in the wife, in
such a situation, to prosecute her husband for rape and nothing short
of rape, and that, in compromising this right, her decisional autonomy,
regarding whether to grant, or refuse, consent, also stands
compromised.
167. To my mind, that is stretching the impugned Exception to a
vanishing point. Every perceived consequence of the applicability of
a statutory provision cannot be regarded as its direct and inevitable
effect. What the petitioners seek to urge, in principle, is that, because
the wife, in the event of the husband's compelling her to have sex
against her consent, cannot prosecute him for rape, therefore the wife
would be compelled to consent to the act. The conclusion does not
flow from the premise. The mere fact that, if the wife, on a particular
occasion, were not to grant consent for sex with her husband, and if,
nonetheless, the husband were to compel her to have sex, the act
committed by him would not qualify as 'rape' within the meaning of
Section 375 cannot, in my view, be regarded as disregarding,
altogether, the wife's right to grant, or refuse, consent. It does not
follow as a direct and inevitable effect of the operation of the
impugned Exception.
168. In this context, the submissions of Ms. Nundy, reproduced in
para 103 supra, are more cautious. She submits that the impugned
Exception "encourages a husband to have forced sexual intercourse
with his wife" and "encourages some husbands to do illegally that
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which cannot be done legally, on the purport that they are exercising
their conjugal right". To my mind, the impugned Exception cannot be
said to do the former and, if it does the latter, would not invalidate it.
The impugned Exception does not encourage any husband to force sex
on his wife, unmindful of her consent. If some husbands do feel so
encouraged, that would be attributable solely to their own perverse
predilections, and is certainly not the direct and inevitable effect of
operation of the impugned Exception. All that the impugned
Exception does, at the cost of repetition many times over, is not to
label, as 'rape', sexual activities between a husband and wife. To
contend that, by extreme extrapolation, the effect of this provision
would be that a wife would never be able to refuse consent to sex,
when her husband demands it, is to visualise an eventuality which
even the legislature, at the time of enacting the provision or even in
the post-Constitutional period, could not legitimately be said to have
envisaged.
169. There is another, and more important, infirmity in the "consent"
argument advanced by the petitioners, and why it, essentially,
obfuscates the main issue in controversy. Grant, or refusal, of consent
by anyone, to any act, is a physical fact. If a man seeks sexual
relations with a woman, and the woman refuses consent, that refusal,
as a physical fact, is independent of any relationship between the man
and woman. By emphasising on this physical fact, which remains the
same irrespective of whether the man and woman are married, or
unmarried, what the petitioners seek to do, effectively, is to obfuscate
all other distinguishing features between the two situations. In other
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words, in the two situations between which the legislature seeks to
draw a distinction, i.e., of non-consensual sex between a man and a
woman, where the man is a stranger, and where the man is married to
the woman, the petitioners seek to contend that there is no legitimate
basis for drawing such a distinction as, in either case, the woman had
refused consent. Any distinction between the two cases, according to
learned Counsel for the petitioners, would amount to "disregarding"
and "reducing to a nullity", the woman's non-consent. In so
foregrounding the aspect of want of consent, learned Counsel
conveniently disregards all other distinguishing circumstances,
including the circumstances in which the request was made, the
relationship between the parties, the legitimate conjugal expectations
of the man, as the husband of the woman and the reciprocal
obligations of the wife, the peculiar demographics and incidents of
marriage, vis-à-vis all other relationships between man and woman,
and all other legitimate considerations to which I have already
referred, and which justify extending, to sexual intercourse and sexual
acts within marriage a treatment different from such acts committed
outside the marital sphere.
170. Unjustified denial of sex by either spouse, within a marital
relationship is, even as per the petitioners, "cruelty", entitling the
other spouse to seek divorce on that ground. A Division Bench of this
Court has, in a recent decision in Rishu Aggarwal v. Mohit Goyal123,
held that it tantamounts to "matrimonial misconduct" and, equally,
may "certainly constitute 'hardship'" to the spouse to whom sex has
MANU/DE/1231/2022
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been denied. Learned Counsel for the petitioners, themselves,
acknowledge the existence of an in praesenti and continuing
obligation, of either spouse, to provide reasonable sexual access to the
other. The existence, in each spouse, of a legitimate conjugal
expectation of meaningful sexual relations with the other is also
acknowledged and admitted.
171. The importance of these obligations and expectations are
completely undermined, in the submissions advanced by learned
Counsel for the petitioners. These obligations, or expectations, do
not, needless to say, entitle the husband to coerce or force his wife
into sex, against her, or his, will, which learned Counsel for the
petitioners erroneously seem to assume to be the implication of the
impugned Exception. At the same time, these obligations,
expectations and considerations, which are completely absent in the
case of a stranger who seeks sexual congress, do constitute a
sufficient basis for the legislature to distinguish qualitatively
between an incident of non-consensual sex within the marital
sphere and without it. In view of these several distinguishing features
that mark out the relationship between a husband and wife, and its
dynamics both within and outside the confines of the bedroom, as sui
generis, if the legislature has desired not to characterize husbands as
rapists, I completely fail to see how the Court can hold otherwise.
172. What learned Counsel for the petitioners seek to contend is that,
because the right of the wife to her bodily autonomy is so inviolable
and sacred, every act that transgresses or violates such right must of
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necessity be "fairly labelled" as rape. That is not, however, how the
law works. The submission is, conceptually, not too distanced from
the contention that, because the right to human life is inviolable and
sacred, every act of the taking of life, by one person of another, must,
of necessity, be fairly labeled as murder. Besides the fact that (i) as
a Court exercising jurisdiction under Article 226 of the Constitution of
India, we are not empowered to return any such proclamation, which
would amount to unsconscionable encroachment on the legislative
sphere and (ii) there is, even otherwise, no basis for assuming every
act of non-consensual sexual intercourse between man and woman to
be rape, except the petitioners' own personal idea of what the legal
position should be, the legislature is perfectly within its rights to treat,
for the purposes of legal liability whether criminal or civil, an act
differently, depending on the circumstances in which it is committed,
the identity of the perpetrator, and the identity of the victim. All that
is required is the existence of an intelligible differentia having a
rational nexus to the object of making of the distinction. Present
these, there can be no constitutional infirmity in the legislative
dispensation.
173. The impugned Exception, therefore, neither compromises on,
nor disregards, the aspect of consent of the woman to a sexual
advance by the man. As against this one aspect which is common to
non-consensual sex between the man and the woman, whether they be
situated in a marital, or a non-marital, setting, the impugned
Exception, taking into consideration other differentiating factors, and
the element of overwhelming public interest in preserving the marital
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institution, treats the two situations as different and unequal and,
therefore, extends, to them, different treatments. This, in my view, is
entirely in sync with Article 14, and its mandate, as it refuses to treat,
as equal, two situations which are clearly not comparable with each
other.
174. The submissions of learned Counsel for the petitioners, to the
effect that the impugned Exception compromises on the right of the
wife to grant, or refuse, consent to sex, or reduces her decisional
autonomy, in that regard, "to a nullity" is, therefore, completely bereft
of substance.
175. Mr. Gonsalves had advanced the contention that, in examining
the constitutionality of the impugned Exception, this Court should not
enter into the aspects of "consent" and "coercion", but should allow
the jurisprudence, on these aspects, to develop once the impugned
Exception is struck down as, in his submission, these aspects would
vary on a case-to-case basis. The submission, according to me, merits
rejection outright. As learned Counsel for the petitioners stated, the
aspect of want of consent is one of the necessary ingredients of the
offence of 'rape', as defined in Section 375, IPC. It is not possible,
therefore, for a Court to deal with the provision, without
understanding the concept of 'consent'. Having said that, as I have
already expressed, foregrounding of the concept of consent is really
not justified in the backdrop of the controversy in issue, as consent is
a static fact, irrespective of the other differentiating factors that exist
in non-consensual sex between strangers, vis-à-vis non-consensual sex
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between husband and wife, and what the Court is required to examine
is whether these differentiating factors are sufficient to validate,
constitutionally, the different treatment to non-consensual sex
between husband and wife, as envisioned by the impugned Exception.
The common factor of non-consent, therefore, really does not aid the
discussion.
In the proverbial 'nutshell'
176. The impugned Exception retains, intact, the wife's decisional
autonomy in the matter. She still has the right to either say no, or, as
Ms. Nundy chooses to express it, "a joyful yes". The impugned
Exception does not compromise her right, to do so, in any manner. In
fact, the impugned Exception does not even come in for application, at
that stage. It applies only if, despite the wife's "no", her husband
nonetheless compels her to have sex. In such a situation, the
impugned Exception, for reasons which are perfectly valid and in sync
with Article 14, holds that the husband cannot be convicted for rape.
There is no inherent fundamental right, in the wife, to have her
husband convicted for rape, relatable to Article 21, Article 19, or to
any other Article in the Constitution. (More on that presently.) Nor
do learned Counsel for the petitioners, or the learned amici, for that
matter, even so suggest. The impugned Exception does not treat the
offence as condonable; it merely disapproves the use of the "rape"
vocabulary in the context of marital sexual relations. The wife, if
aggrieved, has her remedies, criminally, under Sections 304B, 306,
377 and 498A of the IPC and Section 3 of the Dowry Prohibition Act,
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1961, civilly, by seeking divorce on the ground of cruelty (if it
amounts to such), and under the DV Act both civilly and criminally.
The petitioners' grievance that these statutes do not punish the act of
non-consensual sex, by the husband with his wife, as rape, holds no
water, simply because the act is not rape. There is no inflexible legal
principle that every act perpetrated by one human being on another
has necessarily to invite criminal consequences. In the event that the
act of the husband, in having sex with his wife against her will or
consent, satisfies the ingredients of any of the criminal statutory
provisions aforenoted, he would be criminally liable. Else, he would
not. This Court cannot, in exercise of its jurisdiction under Article
226 of the Constitution, hold that he should be criminally liable, even
in such a situation, much less that he should be held as having
committed rape. We cannot legislate, or rewrite the statute. Nor can
we label, as an offence of rape, an act which, when committed in
certain circumstances having an intelligible differentia to all other
circumstances, the legislature does not see fit to call rape. Ms. Nundy
would call it "fair labelling". While, personally, I am unable to
concur with her, even assuming, for the sake of argument, that it were,
it is the legislature, that represents the will of the teeming millions in
the country, which would have to be so convinced; not us. We cannot
label, as particular offences, acts that the legislature has consciously
not chosen to so label. Where, in so choosing, the legislature has not
acted in derogation of the Constitution, we have to step back. Any
further foray, by us, into this disputed realm, would partake of the
character of judicial legislation, which is completely proscribed by
law. Empirically, even if the legislature has, qua a particular act,
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decided to make it only subject to civil, and not criminal, action, we
cannot tinker with the statute and strike down a provision so as to
render the act criminally liable, even if we feel that it should be a
crime. It is only if the provision which deems the act not to be an
offence is constitutionally infirm, applying the indicia well-established
in that regard, that we can strike the provision down. (Even there,
our power to do so would be conditioned by the consideration that, by
doing so, we should not be "creating and offence", regarding which I
discuss, in greater detail, later.) If, therefore, the petitioners feel that
the act of a husband compelling, or even forcing, his wife to have sex
with him, against her will or consent, should amount to "rape", and
should attract Section 375, or that the other applicable provisions in
civil and criminal law are insufficient to deal with such a situation,
they would have to take up the issue in Parliament, not in Court.
Should the legislature be convinced of their case, the petitioners'
grievances may well be met. Should they be met, and should the IPC
be amended as they would seek, perhaps, hypothetically, any
challenge to such amendment may also be largely impervious to
judicial challenge, if it conforms to Constitutional standards, and
absent any Constitutional infirmity. We cannot express any opinion
either way.
177. Given the unique demographics of a marriage, the legislature
has, in several statutory provisions, carved out exceptions, or special
dispensations124, which have stood the test of time. Exception 2 to
Section 375 is essentially another manifestation of the same
Refer Section 122 of the Indian Evidence Act, 1872, etc.
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philosophy. It is eminently in public interest. There is a sui generis
entitlement, of the marital sphere, to its own privacy. This cannot be
compromised. The contention of the petitioners that the impugned
Exception unconstitutionally accords preference, to the privacy of the
marital institution, over the privacy of the individuals involved
(particularly the wife) does not, I am constrained to say, make sense,
as the impugned Exception does not compromise, in any manner, with
the "privacy of the individuals involved". It, on the other hand,
advises against unwarranted judicial, or executive, incursions into the
privacy of the marital bedroom and, in doing so, cannot, in my view,
be regarded as sanctioning an unconstitutional dispensation.
Imaginary conceptions of the affront that wives may feel if compelled
to have sex with their husbands against their will or consent cannot
predominate public interest, which is entitled to overarching pre-
eminence. What may make, or mar, a marriage, cannot be predicted
by us. We cannot return a value judgement that, in regarding the
removal, from the marital demographic, any suggestion of 'rape', as
necessary for preservation and protection of the institution of
marriage, and is in its best interests, the legislature has erred. That, in
my view, would amount to no less than our sitting in appeal over the
wisdom of the democratically elected legislature, which is completely
and irrevocably proscribed by law.
178. Ms Nundy had sought to point out that, by operation of the
impugned Exception, a husband would stand immunized from
prosecution for rape, even if he were to commit one or more of the
gross acts of perversion envisaged by the first part of Section 375.
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The submission, essentially, misses the wood for the trees. Section
375 is widely worded. It covers all manners of sexual acts, committed
under one or more of the seven enumerated circumstances envisaged
by clause as "Firstly" to "Seventhly". The decision not to apply, to
sexual acts committed within marriage, the concept of 'rape' would,
but of necessity, cover all the acts envisaged by Section 375. The fact
that, in so doing, acts of gross perversion would also stand covered,
cannot operate to invalidate the impugned Exception. There are other
provisions that criminally penalise, to an equal if not greater degree,
such acts, especially where they result in physical injury to the
woman. These provisions, therefore, serve to differentiate gross acts,
among those contemplated by Section 375, with "milder" offences. If
the case of the petitioners - which appears to be one of the lines of
argument advanced by Ms Rebecca John - is that these provisions
only cater to specific circumstances, such as cruelty, attempted to
commit suicide, grievous hurt, and the like, and do not cover simple
cases of a husband compelling his wife to have sex without her
willingness or consent, that, then, would be a case which they would
have to take up before the Parliament, seeking enactment of a law to
cover all cases of non-consensual sexual intercourse or sexual acts
between husband and wife. The Parliament is empowered to legislate
and frame a new law for the said purpose. Equally, the Parliament
may also deem it appropriate to do away with the impugned
Exception. We, however, cannot do so, unless the impugned
Exception is constitutionally vulnerable. That, in my considered
opinion, it is not.
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'Fair labelling'
179. Before closing the discussion on Article 14, I may deal with the
submission, of Ms Nundy, that "fair labelling" of an act of non-
consensual sex, forced by a husband on his wife, would require the act
to be "labelled" as rape. No perceptible foundation, for this
submission, is forthcoming, save and except the personal perception
of Ms Nundy (and of other learned counsel espousing the same
cause). This submission is predicated, in turn, on the essentially
faulty premise that every act of non-consensual sex by a man with a
woman, irrespective of the relationship between them, the
circumstances in which they are situated, and every other
distinguishing feature, is necessarily to be regarded as rape. I have
already disabused this submission, in the earlier part of the discussion.
Absent this presumption, there is no basis, whatsoever, for the
submission, of Ms Nundy, that an act of non-consensual sex by a
husband with his wife, if it is to be fairly labelled, is necessarily to be
regarded as rape. The plea of "fair labelling", advanced by Ms Nundy
has, therefore, in my view, to be rejected
Article 19(1)(a)
180. Learned Counsel for the petitioners have chosen to submit that
the impugned Exception compromises the wife's right of sexual self-
expression, by compromising on her right to consent, or deny consent,
to sex with her husband. Clearly, it does not. The foregoing
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discussion sufficiently answers the point which, therefore, to my
mind, is completely misconceived.
Article 21
181. One of the main planks of the submission, by learned Counsel
for the petitioners, regarding infraction, by the impugned Exception,
of the rights of a wife under Article 21, predicated on the notion that
the impugned Exception completely disregards the decisional
autonomy of the wife regarding sex, has already been dealt with
hereinabove. Upon going through the submissions advanced by
learned Counsel, as well as learned amici, there is, really nothing
more, which could be said to be substantial, with respect to the
submission that the impugned Exception violates the Article 21 rights
of women. Ms. Nundy submits that any restraint, on a woman's right
to refuse participation in sexual activity, compromises her bodily
integrity and, resultantly, her rights under Article 21. I have already
opined that the impugned Exception does not, directly or indirectly,
affect the woman's right to refuse participation in sexual activity. I
have also pointed out that there is no fundamental right, either in
Article 21 or in any other article of the Constitution, to a woman to
prosecute a man, who has sex with her without her consent, for rape.
Such a right does exist, if the act falls within Section 375, and is not
covered by either of the Exceptions thereto. There is no right,
relatable to any of the provisions of Part III of the Constitution, in the
woman to prosecute the man for rape even if the man happens to be
her husband and, therefore, is entitled to the protection of the
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impugned Exception. Had there existed a right, constitutional even if
not fundamental, entitling every woman to prosecute any man who
had sex with her against her willingness or consent, irrespective of the
relationship of the man with her, then, unquestionably, there would be
substance in the contention of learned Counsel for the petitioners that
the impugned Exception, in doing away with this right, is
unconstitutional. No such right, however, exists; ergo, there is no
constitutional invalidity, either, in the impugned Exception.
182. The opening paragraph of the written submissions tendered by
Mr. Rajshekhar Rao make, in this context, for interesting reading. Mr.
Rao has titled the paragraph "The Exception violates Article 21".
Thereafter, the actual paragraph reads thus:
"The act of non-consensual sexual intercourse or 'rape' is
abhorrent and inherently violative of the basic right to life and
liberty guaranteed by Article 21 in any context. It is the
infliction "not merely (of a) physical injury but the deep sense
of some deathless shame" and causes deep psychological,
physical and emotional trauma, thereby "degrading the very
soul" of the victim. As such, it is an offence not just against
the victim but society at large. It also violates a woman's
right to (a) equality and equal status of all human beings; (b)
dignity and bodily integrity; (c) personal and sexual
autonomy; (d) bodily any additional privacy; and (e)
reproductive choices viz. procreation (and abstention from
procreation). Exception 2 to Section 375, IPC decriminalises
such non-consensual intercourse by a husband upon his wife
and is, therefore, unconstitutional."
183. This passage invites several comments. The observations, in
the said paragraph, relating to the abhorrent nature of the offence of
rape, and its deleterious effects on the victim, are, needless to say,
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unexceptionable. I have had occasion to express much the same
sentiment, in my decision in Shree Bhagwan v. State125, thus:
"Rape devastates, irreversibly and irreparably. It is a vicious
expression of subjugation of woman by man, where the
perpetrator seeks to take brute advantage of what is, at best, a
chance chromosomal circumstance. It is an anachronism,
which, decidedly, cannot be tolerated, in a day and age in
which the sexes march arm in arm, matching stride for stride.
Rape is, in the ultimate eventuate, a crime not of passion but
of power, and when committed by an adult on an innocent
child, a crime of unmentionable perversity."
On this, clearly, there can be no two opinions.
184. If one were to apply, practically, what has been said by Mr. Rao
of the crime of "rape", the entire raison d'etre of the impugned
Exception becomes apparent. As Mr. Rao correctly states, rape
inflicts, on the woman, a "deep sense of some deathless shame", and
results in deep psychological, physical and emotional trauma,
degrading the very soul of the victim. When one examines these
aspects, in the backdrop of sexual assault by a stranger, vis-à-vis non-
consensual sex between husband and wife, the distinction in the two
situations becomes starkly apparent. A woman who is waylaid by a
stranger, and suffers sexual assault - even if it were to fall short of
actual rape - sustains much more physical, emotional and
psychological trauma than a wife who has, on one, or even more than
one, occasion, to have sex with her husband despite her unwillingness.
It would be grossly unrealistic, in my considered opinion, to treat
these two situations as even remotely proximate. Acts which, when
committed by strangers, result in far greater damage and trauma,
2018 SCC OnLine Del 7605
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cannot reasonably be regarded as having the same effect, when
committed by one's spouse, especially in the case of a subsisting and
surviving marriage. The gross effects, on the physical and emotional
psyche of a woman who is forced into non-consensual sex, against her
will, by a stranger, cannot be said to visit a wife placed in the same
situation vis-à-vis her husband. In any event, the distinction between
the two situations is apparent. If, therefore, the legislature does not
choose to attach, to the latter situation, the appellation of 'rape', which
would apply in the former, the distinction is founded on an intelligible
differentia, and does not call for judicial censure.
185. Interestingly, all the features are enumerated, in the afore-
extracted opening paragraph of Mr. Rao's submissions, are features of
rape, and not of the impugned Exception. While all the effects,
enumerated by Mr. Rao, may be said about victims of rape, that
cannot be a ground to contend that, in regarding a husband, who has
non-consensual sex with his wife, as not a 'rapist', the impugned
Exception is rendered unconstitutional. Mr. Rao's submission that the
impugned Exception is unconstitutional as it "decriminalises such
non-consensual intercourse by a husband upon his wife" cannot, as
stated, be accepted, for the simple reason that there is an intelligible
distinction between non-consensual sexual intercourse by a husband
with his wife, and non-consensual sexual intercourse by a stranger
with a stranger.
186. In my view, therefore, Article 21 of the Constitution does not
even come in for discussion in the present case. Its invocation, by
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learned Counsel for the petitioners is, therefore, in my opinion,
fundamentally misconceived.
The aspect of "creation of an offence"
187. I am of the considered opinion that, apart from all other
considerations, and even if it were to be assumed that the impugned
Exception does infract any right guaranteed to wives by Part III of the
Constitution, the Court would, nonetheless, not be in a position to
strike down the impugned Exception, as doing so would result in
creation of an offence.
188. Learned counsel for the petitioners emphatically contend
otherwise. According to them, the "offence of rape" already exists, in
Section 375, and all that striking down of the impugned Exception
would achieve is removal of an unconstitutional restraint on the
operation of the main Section. According to them, while removal of
the impugned Exception may enlarge the class of offenders liable to
be prosecuted for an offence under Section 375, it would not create a
new offence. Ms. Nundy has sought to draw a distinction between
creation of an offence and enlargement of the class of persons who
would be regarded as offenders. That apart, learned Counsel for the
petitioners have also sought to contend that, once a statutory provision
is found to be unconstitutional, Article 13 of the Constitution
mandates that the Court strikes it down, even if, as a consequence, a
new offence is created. Learned Counsel have also placed
considerable reliance on the decision in Independent Thought1, to
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buttress their contention that, by striking down the impugned
Exception, the Court would not be creating an offence.
189. Independent Thought1 being the precedential backbone of
submissions of learned Counsel for the petitioners, it would be
appropriate, at this point, to deal with that decision.
Independent Thought1
190. Any reference to the decision in Independent Thought1 as a
precedent to decide on the validity of the issue in controversy in the
present case, in my considered opinion, be not only unjustified, but
would be outright improper. The Supreme Court has taken pains, in
the said decision, to clarify, at several points, that the decision is not
an authority on the aspect of constitutionality of the impugned
Exception, insofar as it relates to sex between an adult husband and
wife. That apart, the issue in controversy in Independent Thought1
was as to whether the impugned Exception could be allowed to remain
as it is, insofar as it specified the wife as being not below 15 years of
age, as that would render the impugned Exception in conflict with the
main part of Section 375 as well as the POCSO Act and the PCMA.
Pervading, through the entire fabric of the judgement, is the keen
sensitivity that the Supreme Court has extended to the rights of the girl
child. One may refer, illustratively, merely to the following passages,
which underscore the reason why any reliance, on the decision, as a
precedent, much less an authoritative precedent, for the issue in
controversy before us, would be thoroughly misguided:
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(per Lokur, J.)
"The issue before us is a limited but one of considerable
public importance - whether sexual intercourse between a
man and his wife being a girl between 15 and 18 years of age
is rape? Exception 2 to Section 375 of the Penal Code, 1860
(IPC) answers this in the negative, but in our opinion sexual
intercourse with a girl below 18 years of age is rape regardless
of whether she is married or not. The Exception carved out in
IPC creates an unnecessary and artificial distinction between a
married girl child and an unmarried girl child and has no
rational nexus with any unclear objective sought to be
achieved. The artificial distinction is arbitrary and
discriminatory and is definitely not in the best interest of the
girl child. The artificial distinction is contrary to the
philosophy and ethos of Article 15(3) of the Constitution as
well as contrary to Article 21 of the Constitution and our
commitments in international conventions. It is also contrary
to the philosophy behind some statutes, the bodily integrity of
the girl child and her reproductive choice. What is equally
dreadful, the artificial distinction turns a blind eye to
trafficking of the girl child and surely each one of us must
discourage trafficking which is such a horrible social evil.
2. We make it clear that we have refrained from making
any observation with regard to the marital rape of a woman
who is 18 years of age and above since that issue is not before
us at all. Therefore we should not be understood to advert to
that issue even collaterally.
*****
47. The duality therefore is that having sexual intercourse
with a girl child between 15 and 18 years of age, the husband
of the girl child is said to have not committed rape as defined
in Section 375 IPC but is said to have committed aggravated
penetrative sexual assault in terms of Section 5(n) of
the POCSO Act.
*****
48. There is no real or material difference between the
definition of "rape" in the terms of Section 375 IPC and
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"penetrative sexual assault" in the terms of Section 3 of
the POCSO Act. The only difference is that the definition of
rape is somewhat more elaborate and has two Exceptions but
the sum and substance of the two definitions is more or less
the same and the punishment [under Section 376(1) IPC] for
being found guilty of committing the offence of rape is the
same as for penetrative sexual assault (under Section 4 of
the POCSO Act). Similarly, the punishment for "aggravated"
rape under Section 376(2) IPC is the same as for aggravated
penetrative sexual assault under Section 6 of the POCSO Act.
Consequently, it is immaterial if a person is guilty of the same
sexual activity under the provisions of the POCSO Act or the
provisions of IPC--the end result is the same and only the
forum of trial changes. In a violation of the provisions of
the POCSO Act, a Special Court constituted under Section 28
of the said Act would be the trial court but the ordinary
criminal court would be the trial court for an offence under
IPC.
*****
49. At this stage it is necessary to refer to Section 42-A
inserted in the POCSO Act by an amendment made on 3-2-
2013. This section reads:
"42-A. Act not in derogation of any other law.--The
provisions of this Act shall be in addition to and not in
derogation of the provisions of any other law for the
time being in force and, in case of any inconsistency,
the provisions of this Act shall have overriding effect
on the provisions of any such law to the extent of the
inconsistency."
The consequence of this amendment is that the provisions of
the POCSO Act will override the provisions of any other law
(including IPC) to the extent of any inconsistency.
50. One of the questions that arises for our consideration is
whether there is any incongruity between Exception 2 to
Section 375 IPC and Section 5(n) of the POCSO Act and
which provision overrides the other. To decide this, it would
be necessary to keep Section 42-A of the POCSO Act in mind
as well as Sections 5 and 41 IPC ...
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51. These two provisions are of considerable importance
in resolving the controversy and conflict presented before us.
*****
53. It is obvious from a brief survey of the various statutes
referred to above that a child is a person below 18 years of
age who is entitled to the protection of her human rights
including the right to live with dignity; if she is unfortunately
married while a child, she is protected from domestic
violence, both physical and mental, as well as from physical
and sexual abuse; if she is unfortunately married while a
child, her marriage is in violation of the law and therefore an
offence and such a marriage is voidable at her instance and
the person marrying her is committing a punishable offence;
the husband of the girl child would be committing aggravated
penetrative sexual assault when he has sexual intercourse
with her and is thereby committing a punishable offence
under the POCSO Act. The only jarring note in this scheme of
the pro-child legislations is to be found in Exception 2 to
Section 375 IPC which provides that sexual intercourse with
a girl child between 15 and 18 years of age is not rape if the
sexual intercourse is between the girl child and her husband.
Therefore, the question of punishing the husband simply does
not arise. A girl child placed in such circumstances is a child
in need of care and protection and needs to be cared for,
protected and appropriately rehabilitated or restored to
society. All these "child-friendly statutes" are essential for the
well-being of the girl child (whether married or not) and are
protected by Article 15(3) of the Constitution. These child-
friendly statutes also link child marriages and sexual
intercourse with a girl child and draw attention to the adverse
consequences of both.
72. If such is the traumatic impact that rape could and does
have on an adult victim, we can only guess what impact it
could have on a girl child--and yet it is not a criminal offence
in the terms of Exception 2 to Section 375 IPC but is an
offence under the POCSO Act only. An anomalous state of
affairs exists on a combined reading of IPC and
the POCSO Act. An unmarried girl below 18 years of age
could be a victim of rape under IPC and a victim of
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penetrative sexual assault under the POCSO Act. Such a victim
might have the solace (if we may say so) of prosecuting the
rapist. A married girl between 15 and 18 years of age could
be a victim of aggravated penetrative sexual assault under
the POCSO Act, but she cannot be a victim of rape under IPC
if the rapist is her husband since IPC does not recognise such
penetrative sexual assault as rape. Therefore such a girl child
has no recourse to law under the provisions of IPC
notwithstanding that the marital rape could degrade and
humiliate her, destroy her entire psychology pushing her into
a deep emotional crisis and dwarf and destroy her whole
personality and degrade her very soul. However, such a
victim could prosecute the rapist under the POCSO Act. We
see no rationale for such an artificial distinction.
73. While we are not concerned with the general question
of marital rape of an adult woman but only with marital rape
of a girl child between 15 and 18 years of age in the context
of Exception 2 to Section 375 IPC, it is worth noting the view
expressed by the Committee on Amendments to Criminal
Law chaired by Justice J.S. Verma (Retired). In Paras 72, 73
and 74 of the Report it was stated that the outdated notion that
a wife is no more than a subservient chattel of her husband
has since been given up in the United Kingdom. Reference
was also made to a decision [C.R. v. United Kingdom75] of
the European Commission of Human Rights which endorsed
the conclusion that "a rapist remains a rapist regardless of his
relationship with the victim". The relevant paragraphs of the
Report read as follows:
"72. The exemption for marital rape stems from a
long outdated notion of marriage which regarded
wives as no more than the property of their husbands.
According to the common law of coverture, a wife was
deemed to have consented at the time of the marriage
to have intercourse with her husband at his whim.
Moreover, this consent could not be revoked. As far
back as 1736, Sir Matthew Hale declared: 'The
husband cannot be guilty of rape committed by himself
upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given herself up in
this kind unto her husband which she cannot retract.'
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73. This immunity has now been withdrawn in most
major jurisdictions. In England and Wales, the House
of Lords held in 1991 that the status of married women
had changed beyond all recognition since Hale set out
his proposition. Most importantly, Lord Keith,
speaking for the Court, declared, 'marriage is in
modern times regarded as a partnership of equals, and
no longer one in which the wife must be the
subservient chattel of the husband'. [R. v. R.44]
74. Our view is supported by the judgment of the
European Commission of Human Rights
in C.R. v. United Kingdom which endorsed the
conclusion that a rapist remains a rapist regardless of
his relationship with the victim. Importantly, it
acknowledged that this change in the common law was
in accordance with the fundamental objectives of the
Convention on Human Rights, the very essence of
which is respect for human rights, dignity and
freedom. This was given statutory recognition in the
Criminal Justice and Public Order Act, 1994."
(Emphasis in original)
*****
75. On a combined reading of C.R. v. United
Kingdom75 and Eisenstadt v. Baird126, it is quite clear that a
rapist remains a rapist and marriage with the victim does not
convert him into a non-rapist. Similarly, a rape is a rape
whether it is described as such or is described as penetrative
sexual assault or aggravated penetrative sexual assault. A rape
that actually occurs cannot legislatively be simply wished
away or legislatively denied as non-existent.
Harmonising IPC, the POCSO Act, the JJ Act and the
PCMA
76. There is an apparent conflict or incongruity between
the provisions of IPC and the POCSO Act. The rape of a
married girl child (a girl child between 15 and 18 years of
age) is not rape under IPC and therefore not an offence in
view of Exception 2 to Section 375 IPC thereof but it is an
1972 SCC OnLine US SC 62 : 31 L Ed 2d 349 : 92 S Ct 1029 : 405 US 438 (1972)
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offence of aggravated penetrative sexual assault under
Section 5(n) of the POCSO Act and punishable under Section
6 of that Act. This conflict or incongruity needs to be
resolved in the best interest of the girl child and the
provisions of various complementary statutes need to be
harmonised and read purposively to present an articulate
whole.
*****
92. The view that marital rape of a girl child has the
potential of destroying the institution of marriage cannot be
accepted. 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.
93. Looked at from another perspective, the PCMA
actually makes child marriages voidable and makes the
parties to a child marriage (other than the girl child)
punishable for an offence under the said Act. For someone
who supports the institution of marriage, nothing could be
more destructive of the institution of marriage than the
PCMA which makes a child marriage voidable and
punishable on the one hand and on the other, it otherwise
collaterally legitimises the pernicious practice of child
marriages. It is doubtful if the Parliamentary Standing
Committee intended such a situation along with its attendant
adverse and detrimental impacts and so we leave it at that.
94. Assuming some objective is sought to be achieved by
the artificial distinction, the further question is : what is the
rational nexus between decriminalising sexual intercourse
under IPC with a married girl child and an unclear and
uncertain statutory objective? There is no intelligible answer
to this question particularly since sexual intercourse with a
married girl child is a criminal offence of aggravated
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penetrative sexual assault under the POCSO Act. Therefore,
while the husband of a married girl child might not have
committed rape for the purposes of IPC but he would
nevertheless have committed aggravated penetrative sexual
assault for the purposes of the POCSO Act. The punishment
for rape (assuming it is committed) and the punishment for
penetrative sexual assault is the same, namely, imprisonment
for a minimum period of 7 years which may extend to
imprisonment for life. Similarly, for an "aggravated" form of
rape the punishment is for a minimum period of 10 years'
imprisonment which may extend to imprisonment for life
(under IPC) and the punishment for aggravated penetrative
sexual assault (which is what is applicable in the case of a
married girl child) is the same (under the POCSO Act). In
other words, the artificial distinction merely takes the
husband of the girl child out of the clutches of IPC while
retaining him within the clutches of the POCSO Act. We are
unable to understand why this is so and no valid justification
or explanation is forthcoming from the Union of India.
*****
Harmonious and purposive interpretation
101. The entire issue of the interpretation of the JJ Act,
the POCSO Act, the PCMA and Exception 2 to Section 375
IPC can be looked at from yet another perspective, the
perspective of purposive and harmonious construction of
statutes relating to the same subject-matter. Long ago, it was
said by Lord Denning that when a defect appears, a Judge
cannot fold his hands and blame the draftsman but must also
consider the social conditions and give force and life to the
intention of the legislature. It was said in Seaford Court
Estates Ltd. v. Asher127 [affirmed in Asher v. Seaford Court
Estates Ltd.128] that :
"... A Judge, believing himself to be fettered by the
supposed rule that he must look to the language and
nothing else, laments that the draftsmen have not
provided for this or that, or have been guilty of some
or other ambiguity. It would certainly save the Judges
(1949) 2 KB 481 (CA)
1950 AC 508 (HL)
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trouble if Acts of Parliament were drafted with divine
prescience and perfect clarity. In the absence of it,
when a defect appears a Judge cannot simply fold his
hands and blame the draftsman. He must set to work
on the constructive task of finding the intention of
Parliament, and he must do this not only from the
language of the statute, but also from a consideration
of the social conditions which gave rise to it, and of
the mischief which it was passed to remedy, and then
he must supplement the written word so as to give
"force and life" to the intention of the legislature."
108. We make it clear that we have not at all dealt with the
larger issue of marital rape of adult women since that issue
was not raised before us by the petitioner or the intervener.
(per Deepak Gupta, J.)
111. "Whether Exception 2 to Section 375 of the Penal
Code, insofar as it relates to girls aged 15 to 18 years, is
unconstitutional and liable to be struck down?" is the
question for consideration in this writ petition.
*****
114. A husband who commits rape on his wife, as defined
under Section 375 IPC, cannot be charged with the said
offence as long as the wife is over 15 years of age. It may be
made clear that this Court is not going into the issue of
"marital rape" of women aged 18 years and above and the
discussion is limited only to "wives" aged 15 to 18 years. A
man is guilty of rape if he commits any act mentioned in
Section 375 IPC, without the consent of the woman if she is
above 18 years of age. If a man commits any of the acts
mentioned in Section 375 IPC, with a girl aged less than 18
years, then the act will amount to rape even if done with the
consent of the victim. However, as per Exception 2 of Section
375 IPC, if the man is married to the woman and if the "wife"
is aged more than 15 years then the man cannot be held guilty
of commission of the offence defined under Section 375,
whether the wife consented to the sexual act or not.
115. Section 375 IPC creates three classes of victims:
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(i) The first class of victims are girls aged less than
18 years. In those cases, if the acts contemplated under
Section 375 IPC are committed with or without
consent of the victim, the man committing such an act
is guilty of rape.
(ii) The second class of victims are women aged 18
years or above. Such women can consent to having
consensual sex. If the sexual act is done with the
consent of the woman, unless the consent is obtained
in circumstances falling under clauses Thirdly,
Fourthly and Fifthly of Section 375 IPC no offence is
committed. The man can be held guilty of rape, only if
the sexual act is done in absence of legal and valid
consent.
(iii) The third category of victims is married
women. The Exception exempts a man from being
charged and convicted under Section 375 IPC for any
of the acts contemplated under this section if the
victim is his "wife" aged 15 years and above.
To put it differently, under Section 375 IPC a man cannot
even have consensual sex with a girl if she is below the age of
18 years and the girl is by law deemed unable to give her
consent. However, if the girl child is married and she is aged
above 15 years, then such consent is presumed and there is no
offence if the husband has sex with his "wife", who is above
15 years of age. If the "wife" is below 15 then the husband
would be guilty of such an offence.
116. The issue is whether a girl below 18 years who is
otherwise unable to give consent can be presumed to have
consented to have sex with her husband for all times to come
and whether such presumption in the case of a girl child is
unconscionable and violative of Articles 14, 16 and 21 of the
Constitution of India.
*****
168. Therefore, the principle is that normally the courts
should raise a presumption in favour of the impugned law;
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however, if the law under challenge violates the fundamental
rights of the citizens, the law is arbitrary, or is discriminatory,
the courts can either hold the law to be totally
unconstitutional and strike down the law or the court may
read down the law in such a manner that the law when read
down does not violate the Constitution. While the courts must
show restraint while dealing with such issues, the court
cannot shut its eyes to the violations of the fundamental rights
of the citizens. Therefore, if the legislature enacts a law which
is violative of the fundamental rights of the citizens, is
arbitrary and discriminatory, then the court would be failing
in its duty if it does not either strike down the law or read
down the law in such a manner that it falls within the four
corners of the Constitution.
*****
184. There can be no dispute that a law can be set aside if it
is discriminatory. Some elements of discrimination have
already been dealt with while dealing with the issue of
arbitrariness. However, there are certain other aspects which
make Exception 2 to Section 375 IPC insofar as it deals with
the girl child totally discriminatory. The law discriminates
between a girl child aged less than 18 years, who may be
educated and has sexual intercourse with her consent and a
girl child who may be married even before the age of 15
years, but her marriage has been consummated after 15 years
even against her consent. This is invidious discrimination
which is writ large. The discrimination is between a
consenting girl child, who is almost an adult and non-
consenting child bride. To give an example, if a girl aged 15
years is married off by her parents without her consent and
the marriage is consummated against her consent, then also
this girl child cannot file a criminal case against her husband.
The State is talking of the reality of the child marriages. What
about the reality of the rights of the girl child? Can this
helpless, underprivileged girl be deprived of her rights to say
"yes" or "no" to marriage? Can she be deprived of her right to
say "yes" or "no" to having sex with her husband, even if she
has consented for the marriage? In my view, there is only one
answer to this and the answer must be a resounding "NO".
While interpreting such a law the interpretation which must
be preferred is the one which protects the human rights of the
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child, which protects the fundamental rights of the child, the
one which ensures the good health of the child and not the
one which tries to say that though the practice is "evil" but
since it is going on for a long time, such "criminal" acts
should be decriminalised.
185. The State is entitled and empowered to fix the age of
consent. The State can make reasonable classification but
while making any classification it must show that the
classification has been made with the object of achieving a
certain end. The classification must have a reasonable nexus
with the object sought to be achieved. In this case the
justification given by the State is only that it does not want to
punish those who consummate their marriage. The stand of
the State is that keeping in view the sanctity attached to the
institution of marriage, it has decided to make a provision in
the nature of Exception 2 to Section 375 IPC. This begs the
question as to why in this Exception the age has been fixed as
15 years and not 18 years. As pointed out earlier, a girl can
legally consent to have sex only after she attains the age of 18
years. She can legally enter into marriage only after attaining
the age of 18 years. When a girl gets married below the age of
18 years, the persons who contract such a marriage or abet in
contracting such child marriage, commit a criminal offence
and are liable for punishment under the PCMA. In view of
this position there is no rationale for fixing the age at 15
years. This age has no nexus with the object sought to be
achieved viz. maintaining the sanctity of marriage because by
law such a marriage is not legal. It may be true that this
marriage is voidable and not void ab initio (except in the State
of Karnataka) but the fact remains that if the girl has got
married before the age of 18 years, she has the right to get her
marriage annulled. Irrespective of the fact that the right of the
girl child to get her marriage annulled, it is indisputable that a
criminal offence has been committed and other than the girl
child, all other persons including her husband, and those
persons who were involved in getting her married are guilty
of having committed a criminal act. In my opinion, when the
State on the one hand, has, by legislation, laid down that
abetting child marriage is a criminal offence, it cannot, on the
other hand defend this classification of girls below 18 years
on the ground of sanctity of marriage because such
classification has no nexus with the object sought to be
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achieved. Therefore, also Exception 2 insofar as it relates to
girls below 18 years is discriminatory and violative of Article
14 of the Constitution.
186. One more ground for holding that Exception 2 to
Section 375 IPC is discriminatory is that this is the only
provision in various penal laws which gives immunity to the
husband. The husband is not immune from prosecution as far
as other offences are concerned. Therefore, if the husband
beats a girl child and has forcible sexual intercourse with her,
he may be charged for the offences under Sections 323, 324,
325 IPC, etc. but he cannot be charged with rape. This leads
to an anomalous and astounding situation where the husband
can be charged with lesser offences, but not with the more
serious offence of rape. As far as sexual crimes against
women are concerned, these are covered by Sections 354,
354-A, 354-B, 354-C, 354-D IPC. These relate to assault or
use of criminal force against a woman with intent to outrage
her modesty; sexual harassment and punishment for sexual
harassment; assault or use of criminal force to woman with
intent to disrobe; voyeurism; and stalking respectively. There
is no exception clause giving immunity to the husband for
such offences. The Domestic Violence Act will also apply in
such cases and the husband does not get immunity. There are
many other offences where the husband is either specifically
liable or may be one of the accused. The husband is not given
the immunity in any other penal provision except in
Exception 2 to Section 375 IPC. It does not stand to reason
that only for the offence of rape the husband should be
granted such an immunity especially where the "victim wife"
is aged below 18 years i.e. below the legal age of marriage
and is also not legally capable of giving consent to have
sexual intercourse. Exception 2 to Section 375 IPC is,
therefore, discriminatory and violative of Article 14 of the
Constitution of India, on this count also.
187. The discrimination is absolutely patent and, therefore,
in my view, Exception 2, insofar as it relates to the girl child
between 15 to 18 years is not only arbitrary but also
discriminatory, against the girl child.
*****
Relief
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196. Since this Court has not dealt with the wider issue of
"marital rape", Exception 2 to Section 375 IPC should be
read down to bring it within the four corners of law and make
it consistent with the Constitution of India.
197. In view of the above discussion, I am clearly of the
opinion that Exception 2 to Section 375 IPC insofar as it
relates to a girl child below 18 years is liable to be struck
down on the following grounds:
(i) it is arbitrary, capricious, whimsical and
violative of the rights of the girl child and not fair, just
and reasonable and, therefore, violative of Articles 14,
15 and 21 of the Constitution of India;
(ii) it is discriminatory and violative of Article 14
of the Constitution of India; and
(iii) it is inconsistent with the provisions of
the POCSO Act, which must prevail.
Therefore, Exception 2 to Section 375 IPC is read down as
follows:
"Exception 2.--Sexual intercourse or sexual acts by a
man with his own wife, the wife not being 18 years, is
not rape."
It is, however, made clear that this judgment will have
prospective effect.
*****
199. At the cost of repetition, it is reiterated that nothing
said in this judgment shall be taken to be an observation one
way or the other with regard to the issue of "marital rape"."
(Emphasis supplied)
191. The Supreme Court has, times without number129, ruled that
judgements are not to be lightened to Euclid's theorems, and are to be
understood and applied, as precedents, keeping in view the
controversy before the Supreme Court, and the issue that it was called
Ref. State of Orissa v. Mohd Ilyas, (2006) 1 SCC 275, Bharat Petroleum Ltd v. N.R. Vairamani,
(2004) 8 SCC 578 and C.C.E. v Srikumar Agencies, (2009) 1 SCC 469, among others
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upon to decide. In its judgement in Independent Thought1, the
Supreme Court went to the extent of cautioning and clarifying, not
once but four times, that it was not dealing with the issue of marital
rape, i.e. non-consensual sex between adults who were married and
that the judgement was not to be treated as an expression of opinion
on the said issue, even collaterally. To my mind, any attempt to treat
the decision as an authority, even collaterally, on the issue of
constitutionality of the impugned Exception to the extent it applies to
a marriage between adults, whether directly or by employing
interpretative calisthenics predicated on the "inversion test" or any
other test, for that matter, would not only be thoroughly misguided,
but would also amount to a conscious disregard of the words of
caution and clarification used by the Supreme Court itself. I am also
not inclined, obviously, to agree with Mr. Gonsalves' submission that
the Supreme Court could not, in its judgement, have indicated the
scope of its application. I am unaware of any legal principle that
would support this somewhat extreme contention. Mr. Gonsalves has
cited some decisions dealing with cases in which judgements
contained a caveat that they were not to be construed as precedents.
The extent to which one may rely on an earlier pronouncement by a
superior court, where the pronouncement contains an omnibus caveat
that it is not to be considered as a precedent, is somewhat nuanced
and, in my view, open to debate. Perhaps, if the facts of a particular
case are identical to those in the precedent concerned, a court, lower
in the judicial hierarchy, may deem it advisable not to chart a course
opposed to that charted by the Supreme Court. We need not,
however, enter into that debate, for the simple reason that the caveat,
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to be found in Independent Thought1, is not that it is not to be treated
as a precedent, but that the Supreme Court was not, in the said
decision, concerned with the constitutionality of the impugned
Exception, to the extent it applied to a marriage between adults, and
had not expressed any opinion, even collaterally, regarding that issue.
The Supreme Court was, in fact, merely harmonising the stipulation of
the age of the wife, in the impugned Exception, as 15 years and above,
with the main part of Section 375, as well as the provisions of the
POCSO Act and the PCMA, which envisaged the act to be an offence
when committed with the woman of 18 years of age and below. This
was an obvious disharmony, which the Supreme Court, by reading
down the impugned Exception, remedied.
192. I am of the opinion, therefore, that learned Counsel for the
petitioners are completely unjustified in relying upon Independent
Thought1 as a precedent for the issue in controversy before us, i.e.,
the constitutional validity of the impugned Exception as it stands
today, i.e. as modified by Independent Thought1.
193. Independent Thought1 is not, however, without its share of
home truths, even insofar as the present case is concerned. For one,
the Supreme Court has, in the following passages, usefully expounded
on the power of a Court to interfere with a legislative provision,
apropos its constitutionality:
"161. It is a well-settled principle of law that when the
constitutional validity of the law enacted by the legislature is
under challenge and there is no challenge to the legislative
competence, the court will always raise a presumption of the
constitutionality of the legislation. The courts are reluctant to
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strike down laws as unconstitutional unless it is shown that
the law clearly violates the constitutional provisions or the
fundamental rights of the citizens. The courts must show due
deference to the legislative process.
162. There can be no dispute with the proposition that
courts must draw a presumption of constitutionality in favour
of laws enacted by the legislature. In Sub-Divisional
Magistrate, Delhi v. Ram Kali130, this Court observed as
follows : (AIR p. 3, para 5)
"5. ... The presumption is always in favour of the
constitutionality of an enactment, since it must be
assumed that the legislature understands and correctly
appreciates the needs of its own people, and its laws
are directed to problems made manifest by experience
and its discriminations are based on adequate
grounds."
163. Thereafter, in Pathumma v. State of Kerala131, this
Court held that the Court would interfere only when the
statute clearly violates the rights of the citizens provided
under Part III of the Constitution or where the Act is beyond
the legislative competence or such similar grounds. The
relevant observations are as follows : (SCC p. 9, para 6)
"6. It is obvious that the legislature is in the best
position to understand and appreciate the needs of the
people as enjoined by the Constitution to bring about
social reforms for the upliftment of the backward and
the weaker sections of the society and for the
improvement of the lot of poor people. The Court will,
therefore, interfere in this process only when the
statute is clearly violative of the right conferred on the
citizen under Part III of the Constitution or when the
Act is beyond the legislative competence of the
legislature or such other grounds. It is for this reason
that the Courts have recognised that there is always a
presumption in favour of the constitutionality of a
statute and the onus to prove its invalidity lies on the
party which assails the same."
(1968) 1 SCR 205: AIR 1968 SC 1: 1968 Cri LJ 82
(1978) 2 SCC 1
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164. In State of A.P. v. P. Laxmi Devi132, this Court held
thus:
"66. As observed by the Privy Council in Shell Co.
of Australia v. Federal Commr. of Taxation133:
'... unless it becomes clear beyond reasonable
doubt that the legislation in question
transgresses the limits laid down by the organic
law of the Constitution, it must be allowed to
stand as the true expression of the national
will...'
67. Hence if two views are possible, one making
the provision in the statute constitutional, and the other
making it unconstitutional, the former should be
preferred vide Kedar Nath Singh v. State of Bihar134.
Also, if it is necessary to uphold the constitutionality
of a statute to construe its general words narrowly or
widely, the court should do so vide G.P. Singh's
Principles of Statutory Interpretation, 9th Edn., 2004,
p. 497."
165. In Subramanian Swamy v. CBI11, a Constitution
Bench of this Court laid down the following principle: (SCC
p. 722, para 49)
"Court's approach
49. Where there is challenge to the constitutional
validity of a law enacted by the legislature, the Court
must keep in view that there is always a presumption
of constitutionality of an enactment, and a clear
transgression of constitutional principles must be
shown. The fundamental nature and importance of the
legislative process needs to be recognised by the Court
and due regard and deference must be accorded to the
legislative process. Where the legislation is sought to
be challenged as being unconstitutional and violative
132 (2008) 4 SCC 720
1931 AC 275 : 1930 All ER Rep 671 (PC)
AIR 1962 SC 955 : (1962) 2 Cri LJ 103
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of Article 14 of the Constitution, the Court must
remind itself to the principles relating to the
applicability of Article 14 in relation to invalidation of
legislation. The two dimensions of Article 14 in its
application to legislation and rendering legislation
invalid are now well recognised and these are : (i)
discrimination, based on an impermissible or invalid
classification, and (ii) excessive delegation of powers;
conferment of uncanalised and unguided powers on the
executive, whether in the form of delegated legislation
or by way of conferment of authority to pass
administrative orders--if such conferment is without
any guidance, control or checks, it is violative of
Article 14 of the Constitution. The Court also needs to
be mindful that a legislation does not become
unconstitutional merely because there is another view
or because another method may be considered to be as
good or even more effective, like any issue of social,
or even economic policy. It is well settled that the
courts do not substitute their views on what the policy
is." "
These passages delineate, authoritatively, the scope of judicial review
with legislative provisions. There is a presumption that the legislation
is constitutional. Though Puttaswamy42 seems to restrict the
applicability of this principle in the case of pre-Constitutional
legislations, there is substance in Mr. Sai Deepak's contention that,
where the validity, and the need for continuance, of the legislation has,
been considered for discussion and debate on the floor of Parliament
and otherwise, in the post-Constitutional era, a vestige of
constitutionality would certainly attach to the legislation. It would be,
therefore, for the challenger, challenging the validity of the provision,
to establish, positively, that it is unconstitutional. Further, the afore-
extracted passages from Independent Thought1 confirm and clarify
that (i) Courts must show due deference to the legislative process, (ii)
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Courts should interfere only when the statute clearly violates the
fundamental rights guaranteed by Part III of the Constitution, or where
the provision is bad for want of legislative competence or for some
similar ground, (iii) faced with a choice of interpreting the provision
in a manner which would render it constitutional, vis-à-vis one which
would render it unconstitutional, the Court must necessarily lean in
favour of the former interpretation, even if, for that purpose, the words
have to be construed narrowly or widely, (iv) legislation does not
become unconstitutional merely because an alternate view, to the view
expressed by the legislature in the legislation, is possible, or because
there is another, or more effective, remedy for the ill that the
legislation seeks to address and (v) this would be applicable,
especially, in the case of issues of social or economic policy. Even so,
Independent Thought1 does hold, as learned Counsel for the
petitioners have unexceptionably contended that, where a statutory
provision is violative of fundamental rights of citizens, the Court
would strike down.
194. To my mind, however, that need does not arise in the present
case, as the impugned Exception does not violate any fundamental
right, guaranteed by Part III of the Constitution of India.
195. Another significant takeaway from Independent Thought1 is to
be found in para 190 of the report, which reads thus:
"190. One of the doubts raised was if this Court
strikes down, partially or fully, Exception 2 to Section
375 IPC, is the Court creating a new offence. There
can be no cavil of doubt that the courts cannot create
an offence. However, there can be no manner of doubt
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that by partly striking down Section 375 IPC, no new
offence is being created. The offence already exists in
the main part of Section 375 IPC as well as in Sections
3 and 5 of the POCSO Act. What has been done is only
to read down Exception 2 to Section 375 IPC to bring
it in consonance with the Constitution and
the POCSO Act."
It is significant that the afore-extracted para 190 figures, in the
judgement in Independent Thought1 after paras 161 to 168, in which
the Supreme Court has endorsed the authority of the Court to strike
down a legislative provision as unconstitutional if it violates any
provision of Part III, or is legislatively incompetent, among other
things. Even while, thus, affirming the power of a Court to strike
down the statutory provision as unconstitutional for valid grounds, the
Supreme Court, nonetheless, went on to enter a caveat to this
proposition, by clarifying that there could be "no cavil of doubt that
the courts cannot create an offence". Having so clarified, the Supreme
Court, applying the principle to the case before it, held that it was not
creating an offence as the age of 18, for the woman, already found
place in the main part of Section 375, and was punishable under the
PCMA as well as the POCSO Act, in the latter case as penetrative
sexual assault which, held the Supreme Court, was merely another
expression for rape. Inasmuch as it was merely harmonising the
impugned Exception with other statutory provisions, failing which
there would have been a disconnect among them, the Supreme Court
held that it was not creating any offence and was not, thereby,
transgressing the frontiers of its legitimate jurisdiction.
196. To my mind, the proscription on Courts creating an offence by
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judicial fiat operates as a restraint even on the exercise of the power
to strike down a legislative provision as unconstitutional. In other
words, if a provision is found to be unconstitutional, the Court may
strike it down provided, by doing so, it is not creating an offence. If,
by its judgement, the Court creates an offence, there is an absolute
proscription, even if the provision is otherwise unconstitutional. If
this were not the legal position, there was no occasion, at all, for the
Supreme Court, having held that a case for reading down the
impugned Exception existed, to examine whether, by doing so, it was
creating an offence.
197. While the proscription on creation of an offence by judicial
action is, in a way, a mere extrapolation of the principle that Courts
cannot legislate, or take over the function of the legislature, the
principle, even otherwise, accords with common sense, as well as the
realities of the legislative process. Legislation is a complex exercise,
especially where it involves designation of an act as an offence.
Inasmuch as the decision would have nationwide repercussions, it
cannot be undertaken by a body which is possessed neither of the
wherewithal, nor the resources, to undertake it. Judges sitting in
courts cannot, on the basis of arguments of Counsel, howsoever
persuasive, create offences, or pass judgements which would result in
an act, otherwise not an offence, being rendered an offence. The effect
of designating an act as a criminal offence, on all who may commit
that act, cannot be forgotten. For that reason, extensive consultation
with all stakeholders, especially given the fact that India is a country
of diverse cultures, religions, beliefs and social and societal realities,
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is absolutely necessary. We cannot undertake that exercise, and our
oath does not authorise us to do so, either.
198. Yet another reason why the Court cannot create an offence, is
because a Court cannot legislatively stipulate the punishment for the
offence. In the present case, for example, there is no stipulated
punishment for an act of non-consensual sex, by a husband with his
wife, as it is does not amount to 'rape' and, consequently, Section 376
would not apply to it. If the impugned Exception was to be struck
down, we would make, ipso facto, the punishments envisaged by
Section 376, applicable to such a husband, where the legislature never
intended these punishments to apply to him. We, therefore, would be
doing something which was never within the contemplation of the
legislature, which may be even worse, jurisprudentially, than judicial
legislation itself. If the Court is not empowered to prescribe
punishments, equally, the Court cannot, by its order, convert an act
which, prior thereto, was not an offence, into an offence.
199. To this, learned Counsel submit that the Court should strike
down the impugned Exception as unconstitutional and recommend, to
the legislature, to consider modulating or reducing the punishments
prescribed in Section 376 to cater to cases of non-consensual sex
within marriage which would, thereby, qualify as 'rape'. To my
mind, the suggestion bears rejection, outright. That, in fact, is one of
the reasons why Courts cannot, by judicial fiat, create offences.
Creation of an offence would entail, in its wake, prescribing of a
punishment, and that, most definitively, the Court cannot do. Equally,
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therefore, the Court cannot strike down a provision where, by doing
so, an offence would come into being, and leave the legislature to
think of the appropriate punishment that would visit the offender.
What happens to cases which come up in the interregnum?
200. But, assert learned Counsel for the petitioners, by striking down
the impugned Exception, this Court would not be creating an offence.
They rely, for this purpose, on Independent Thought1, in which it was
held that the Supreme Court was not creating an offence by reading
down the impugned Exception to apply to women below the age of
201. The analogy is between chalk and cheese. The situation that
presents itself before us is not even remotely comparable to that which
was before the Supreme Court in Independent Thought1. We are not
called upon to harmonise the impugned Exception with any other
provision. The petitioners contend that the impugned Exception is
outright unconstitutional and deserves to be guillotined. Would we
not, by doing so, be creating a new offence?
202. The answer, in my opinion, has necessarily to be in the
affirmative. Section 40 of the IPC defines an "offence" as "a thing
made punishable by this Code". As things stand today, an act of non-
consensual sex, by a husband with his wife, is not rape. Were we to
allow these petitions, it would, thereafter, be rape. As things stand
today, if a wife lodges an FIR against her husband for having raped
her, the husband need not contest the case that would result, or prove
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his innocence; he may, straightaway, seek recourse to Section 482 of
the Cr PC and seek that the FIR be quashed, for the simple reason
that, even if the act alleged had been committed by him, it is,
statutorily, not rape. Any allegation of rape by a husband of his wife
is, therefore, anathema to the IPC, and directly contrary to the
impugned Exception. Were, however, we to agree with the
petitioners, and strike down the impugned Exception and, thereafter, if
a wife was to lodge an FIR against her husband for having raped her,
Section 482 would, ordinarily, not be available to the husband, who
would have to contest the trial and establish his innocence, as the act
that he committed would, with the evisceration of the impugned
Exception, become an offence of rape. We would, therefore, be
designating the act of the husband, vis-à-vis his wife, as rape, where,
earlier, it was not.
203. The contention, of Ms Nundy, that the Court would not be
creating an offence, but would be merely enlarging the class of
offenders, is obviously fallacious. This contention is predicated on
the premise that the specification, in the impugned Exception,
excepting husbands, vis-à-vis their wives, from the scope of an
allegation of 'rape' is something apart from the main Section 375. I
am unable to agree. To my mind, as I have already observed earlier,
every offence consists of four ingredients, i.e., the act, the perpetrator,
the victim and the punishment. Offences may legitimately be made
perpetrator-specific or victim-specific. In the present case, Section
375, read as a whole, makes the act of 'rape' perpetrator-specific, by
excepting, from its scope, sexual acts by a husband with his wife.
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Though this stipulation finds its place in the impugned Exception, it
might, just as well, have figured in the main part of Section 375. The
legislature might, just as well, have worded Section 375 thus:
"A man is said to commit 'rape' if he -
(a) *******; or
(b) *******; or
(c) *******; or
(d) *******,
not being the husband of the woman, under the circumstances
falling under any of the following seven descriptions: - ......"
The specification of the identity of the man, and his relationship vis-à-
vis the woman, which presently finds place in the impugned
Exception might, therefore, just as well have been part of the main
provision, and I am not inclined to regard the placement of this
stipulation, in the impugned Exception as anything more than a device
of legislative convenience. It does not detract from the fact that the
stipulation, contained in the impugned Exception is one of the
ingredients of the offence of 'rape'. 'Rape' would not, therefore,
under Section 375, apply to acts committed by a husband with his
wife.
204. Viewed thus, it is obvious that, by eviscerating the impugned
Exception, the Court would be altering, altogether, the stipulation
regarding the perpetrator of the offence of 'rape', by covering all men
thereunder, save and except those who would be entitled to the benefit
of the first Exception in Section 375, which applies to medical
procedures. This also follows from the fact, already noted by me
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hereinabove, that, by striking down the impugned Exception, this
Court would be denying, to the husband, the benefit of Section 482 of
the Cr PC which, as the statutory position stands today, is available to
him, in view of the impugned Exception.
205. The submission of Ms Nundy - and other learned Counsel - is,
in fact, essentially yet anoher fallout of their fundamentally fallacious
premise that every act of non-consensual sex by a man with a woman
is, of necessity, "rape". This erroneous premise is extrapolated to
treating the impugned Exception as merely exempting a class of
offenders from the rigour of Section 375. This, as I have held, is a
clear misreading of the impugned Exception. The impugned
Exception does not say that husbands would be exempted, or excepted,
from being prosecuted for rape; it says, rather, that, sexual acts
between a husbanad and wife are not rape. The offence of rape,
therefore, does not exist, where the man and woman are married.
Where there is no offence, there can, axiomatically, be no offender.
The impugned Exception does not, therefore, exempt a category of
offenders from the purview of Section 375 who, by eviscerating the
Exception, we would be bringing within the four corners of the
provision. Rather, by striking down the impugned Exception, we
would be pronouncing that an act of non-consensual sex between a
husband and a wife is rape, where, as the statutory position stands
now, it is not.
206. If this does not amount to creation of an offence, I, frankly, fail
to see what would.
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207. The submission that, were we to strike down the impugned
Exception, we would not be creating an offence is, therefore,
unequivocally rejected.
208. As, by allowing the petitioners' pleas, we would be creating an
offence, I am of the opinion that, irrespective of and in addition to all
other contentions advanced by the petitioner, and all other
considerations that arise in this case, it is impossible for this Court to
grant the reliefs sought by the petitioners, as it would result in creation
of an offence, which is completely proscribed in law.
The impact of Section 376(2)(f) and (n)
209. There may also be substance in the contention, of learned
Counsel for the respondents that, by striking down the impugned
Exception, one may expose husbands to the rigour of Section
376(2)(f), which envisages rape, by a relative, or a person in a
position of trust or authority towards the woman, as aggravated rape,
subject to a higher degree of punishment of rigourous imprisonment
of not less than 10 years, extendable to life. He may, equally, stand
exposed to enhanced punishment under Section 376(2)(n), if there
have been more than one instance of non-consensual sexual
intercourse with his wife.
210. Learned counsel for the petitioners have not been able to
satisfactorily meet the point. The submission of Ms. Nundy, that,
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applying the "mischief rule" of interpretation, the husband could
escape Section 376(2)(f) would, in my view, be highly arguable, as
there can be no gainsaying the fact that a husband is a relative of his
wife, as well as a person in a position of trust towards his wife.
Criminal statutes are, it is trite, to be strictly construed.
211. Clearly, therefore, even in stipulating the punishments for rape,
in Section 376, the legislature, consciously, does not intend to extend
its ambit to husbands, vis-à-vis their wives. The stipulated
punishments have factored in the impugned Exception. Were we to
strike down the impugned Exception, we would be doing precisely
what the legislature forbore from doing. The resulting prejudice to
public interest would be incalculable and immense.
Section 114A of the Indian Evidence Act, 1872 and its Significance
212. Another serious concern expressed by learned Counsel
proposing the striking down of the impugned judgment is predicated
on Section 114A135 of the Evidence Act.
213. It is sought to be contended that, if non-consensual sex within
marriage is to be treated as rape, it would become near impossible for
the accused husband to establish want of consent, and Section 114A of
the Evidence Act would operate to ensure, in almost every case, a
114A.Presumption as to absence of consent in certain prosecutions for rape.--In a prosecution for rape
under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section
376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman alleged to have been raped and she states in her
evidence before the Court that she did not consent, the Court shall presume that she did not consent.
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conviction. Learned Counsel for the petitioners sought to contend that
the effect of Section 114A of the Evidence Act would apply equally to
rape outside marriage as to rape within marriage.
214. To my mind, the concern, predicated on Section 114A of the
Evidence Act, is legitimate. Section 114A presumes want of consent
on the part of the prosecutrix, in every case of prosecution for rape. If
"rape" is to apply even to non-consensual sex within marriage, and a
wife is to allege want of consent, it may conceivably become
extremely difficult, if not impossible, for the husband to discharge the
onus cast on him, by Section 114A, to prove existence of consent, as
the act has taken place within the confines of the bedroom.
215. I do not propose to express any final opinion on this aspect as it
would be a matter for the concerned Court, seized with prosecution
proceedings alleging the Marital Rape (if the impugned Exception is
ultimately to perish) to deliberate upon a case-to-case basis. Suffice it
to state that the manner in which the effect of Section 114A, if non-
consensual sex within marriage is to be treated as rape, would operate,
is a valid consideration and, if it has also weighed with the legislature
in its decision not to remove the impugned Exception, the concern is
legitimate. This would operate as yet another reason why the Court
cannot, in exercise of its jurisdiction under Article 226 of the
Constitution of India, trump the legislative wisdom and strike down
the impugned Exception.
216. This also throws, into sharp relief, an extremely important
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aspect of the present controversy to which, I am constrained to note,
no sufficient importance was attributed during the proceedings. An
offence does not exist in isolation or in vacuo. A provision creating
an offence carries, with it, its entrails and its viscerae. If,
hypothetically, the legislature were, on the persuasion of the
opponents of the impugned Exception, to do away with it, that would
also necessitate, in its wake, other legislative changes. Quite possibly,
the punishments provided in Section 376 may have to be duly
modified in order to deal with the newly created offence of "marital
rape". Equally, changes may also be required to be incorporated in
Section 114A of the Evidence Act. These are all imponderables.
What is being sought of this Court is that, oblivious of all the other
statutory changes which removal of the impugned Exception would
necessarily entail, the Court should telescope its view merely to
concentrate on the impugned exception and strike it down.
217. In my view, this is not permissible. This Court does not have
the competence or the authority to envision or carry out all other
concomitant legislative changes which removal of the impugned
Exception would necessitate. This is yet another reason why, if a case
for removal of the impugned Exception is to be pleaded, that has to be
pleaded before the legislature which, if it is convinced with the plea,
would not only remove the impugned Exception but would also
deliberate on other resultant legislative changes which have to be
undertaken. In my view, it would be a complete misadventure for the
Court to strike down the impugned Exception and, thereafter, leave it
to the legislature to effect other necessary legislative amendments
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consequent to the verdict of the Court, allowing a situation of chaos to
prevail in the interregnum.
Other submissions
218. Considerable reliance was placed, by learned Counsel for the
petitioners, as well as by learned amici curiae, on the position in
foreign jurisdictions, as well as on recommendations contained in the
Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW). Insofar as the position existing in
foreign jurisdictions is concerned, according to me, it is largely
irrelevant to the issue at hand. We are concerned, here, with the issue
of whether to strike down the impugned Exception as
unconstitutional. That has to be decided on the basis of our
Constitution, and the principles well enunciated by Courts, time and
again, regarding constitutionality of statutes. It is obviously not open
to us to strike down the impugned Exception as unconstitutional
merely because similar provisions, in other jurisdictions, may not
exist, or may have been outlawed, judicially or legislatively.
Expressed otherwise, it is not open to any Court in India to strike
down the legislative provision as unconstitutional merely so as to
conform to what, according to the petitioners, may be the international
sentiment. That is quite apart from the fact that the socio- economic
and ground realities that obtain in India, with its complex diversity of
peoples and cultures, are not comparable with the situation that
applies in other countries.
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219. Insofar as the recommendations in the 37th Session of the
CEDAW in 2007 are concerned, they are merely recommendations.
They do not bind even the legislature to legislate in accordance with
the recommendations. Even otherwise, and that the cost of repetition,
recommendations made by the CEDAW cannot constitute and
additional ground to strike down a statutory provision as
unconstitutional. Puttasamy42 observers thus, in this regard (in para-
103 of the report):
"In the view of this Court, international law has to be
construed as a part of domestic law in the absence of
legislation to the contrary and, perhaps more
significantly, the meaning of constitutional guarantees
must be illuminated by the content of international
conventions to which India is a party."
Puttasamy42 further holds, in para 154 of the report, that "where there
is a contradiction between international law and a domestic statute,
the Court would give effect to the latter". Krishna Iyer, J., expressed
the position pithily when he held, in Jolly George Varghese v. Bank
of Cochin136, that "the positive commitment of the States parties
ignites legislative action at home but does not automatically make the
Covenant an enforceable part of the corpus juris of India." Where
covenants in international conventions are in line with municipal law
in India it is open to a Court to rely on international conventions to
enforce municipal obligations.137 There is, however, no existing
position, in law, envisaging the evisceration, by a Court, of a statutory
provision on the ground that it is not in sync with the
136(1980) 2 SCC 360
Refer Nilabati Behra Alias v. State of Orissa, (1993) 2 SCC 746 and Vishakha v. State of Rajasthan,
(1997) 6 SCC 241
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recommendations contained in international conventions. Any
argument for altering the statutory scenario, predicated on
recommendations in international conventions would, therefore,
necessarily have to be made before the legislature, and cannot be
urged is a ground to strike down a statutory provision as
unconstitutional. Unconstitutionality would vitiate a statutory
provision only if, either, it is beyond the competence of the legislature
which has enacted it or infracts one or more of the fundamental rights
enshrined in Part III of the Constitution.
The sequitur
220. As, therefore,
(i) the petitioners' case is premised on a fundamentally
erroneous postulate, for which there is no support available,
either statutory or precedential, that every act of non-consensual
sex by any man with any woman is rape,
(ii) the impugned Exception does not violate Article 14, but
is based on an intelligible differentia having a rational nexus
with the object both of the impugned Exception as well as
Section 375 itself,
(iii) the impugned Exception does not violate Article
19(1)(a),
(iv) the impugned Exception does not violate Article 21,
(v) none of the indicia, on which a statutory provision may
be struck down as unconstitutional, therefore, can be said to
exist, and
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(vi) in such circumstances, the Court cannot substitute its
subjective value judgement for the view of the democratically
elected legislature,
I am of the considered opinion that the challenge, by the petitioners, to
the constitutional validity of Exception 2 to Section 375 of the
Constitution of India, cannot sustain.
Section 376B of the IPC and Section 198B of the Cr PC
221. The discussion hereinabove also answers the challenge, by the
petitioners, to Section 376B of the IPC and Section 198B of the Cr
PC.
222. Section 376B of the IPC is obviously predicated on the fact
that, when separated, the demographics that otherwise apply to a
subsisting and surviving marriage between the couple are absent. It is
important to note that Section 376B does not characterise the act of
non-consensual sexual intercourse by the man with the woman, in
such a situation, as 'rape'. It treats it as a distinct and different
offence altogether, with a different punishment stipulated for its
commission. Where marital ties have severed, even if short of an
actual divorce, then, absent consent, the husband has no reasonable
conjugal expectation of sex with his wife. The unique indicia that
apply to a healthy, subsisting and surviving marriage, therefore, have
ceased to apply. This, again, is a situation which is qualitatively
distinct from a situation of sex between strangers, as also from one of
sex between a husband and wife who are cohabiting with one another.
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While, therefore, it cannot be equated with sex between strangers, it
is, nonetheless, also not alike to sex between a couple who stay and
cohabit together. An advisable middle path has, therefore, been
carved out by the legislature to cater to such cases, and I see no reason
to interfere with the dispensation. Of course, it would be for the court
to see, in every case, as to whether the couple is, in fact, "living
separately". As the marriage is, nonetheless, subsisting, though the
couple is not together, the legislature has chosen to prescribe a
suitable lesser punishment for the offence. The exercise of legislative
discretion is entirely in order, and, to my mind, the challenge to the
vires of the provision has no legs, whatsoever, to stand on.
223. Section 198B merely sets out the procedure to deal with
complaints filed under Section 376B. No occasion, therefore, arises,
to strike down the provision.
Conclusion
224. For all the above reasons, I am of the considered opinion that
the petitions, as well as the challenges laid by the petitioners to the
constitutional validity of Exception 2 to Section 375 and Section 376B
of the IPC, and Section 198B of the Cr PC, have to fail.
225. The petitions, therefore, in my view, deserve to be dismissed,
albeit without costs.
226. I concur with my esteemed brother in his decision to grant
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certificate of leave to appeal to the Supreme Court in the present
matter as it involves substantial questions of law, of which the
Supreme Court is presently in seisin.
C. HARI SHANKAR, J.
MAY 11, 2022
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