Today the Delhi High Court will be hearing an intervention application filed by Purush Aayog through Advocate Vivek Narayan Sharma, Advocate Aditya Manubarwala and Advocate Shoaib Haider in the Marital Rape case RIT Foundation v. Union of India and other connected matters.

The bench comprises of Justices Rajiv Shakdher and C Hari Shankar. The Writ Petition at hand deals with striking down of the exception Section 375 of IPC. The exception in question states,

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The striking down of this exception will lead to the criminalization of Marital Rape. The set of petitions for this are being heard by the Delhi High Court. The Petitioner’s case is that the woman’s right to dignity, personal and sexual autonomy is been violated by the presence of this exception.

The Court has appointed Sr. Adv. Rajshekhar Rao and Sr. Adv. Rebecca M. John as Amicus Curiae, who also support the criminalization of the act of Marital Rape.

The pleas have been opposed by the Delhi Government and two interveners.

Purush Aayog is a civil society organization of concerned citizens that voices men's issues and fights for their legitimate rights. The application by the intervener has been filed under Order I rule 10 read with section 151 of the code of civil procedure by the intervener Purush Aayog through its president Barkha Trehan. It is the primary submission of the Applicant that the law has rightly distinguished & classified the status of Married and Unmarried Women. Consent and Willingness for Sexual Acts and Overtures are ingrained and inseparable in the very act of Marriage, which is not the case in relation to Unmarried Women, where even the overtures i.e. non-penetrative sex would amount to Rape, as per the amended definition of Rape under Section 375 of IPC. The reasonable differentia is well understood by the Parliament and thererfore the law is in the form, as it is. The question of Rape would only arise when the married woman leaves the company of her husband (i.e. starts living separately, whether under a decree of separation or otherwise) and in such a situation the husband has sex with the woman without her consent. The same is equivalent to withdrawal of consent and willingness (as ingrained and pre-supposed in a marriage) for having sex. And such situation is well covered under Section 376B of IPC, which criminalises the Marital Rape. The application has raised following contentions:

  • The present Writ Petition requires the Judiciary to carry out a legislative function

It has been submitted by the intervener that the courts cannot supplant its wisdom with the wisdom of the legislature. The contention that power to create an offense solely vests with the legislature/creation of an offense by the judiciary is an act of judicial overreach was highlighted by the intervener.

  • Exception II of section 375 of IPC is Constitutional as it is consistent with Fundamental Rights enshrined in part III of the Constitution

It has been pointed out that consent and willingness are ingrained in the act of marriage, which is not there in the cases of unmarried women, and therefore this provides reasonable differentia and question of violation would only arise when one of the spouses leaves the company of other and that is equivalent to the withdrawal of consent and willingness for sexual relations and such violations are well addressed by the legislature via section 376 B of IPC. Secton 376, Exception II to Section 375 of Indian Penal Code, Section 376B of Indian Penal Code and Section 198B of Criminal Procedure Code, 1973 rightly classify rape victims into three classes viz, (i) Married; (ii) Married but Separated; & (iii) Unmarried.

  • Present remedies available to married women are adequate and appropriate

The intervener through its application highlighted the existing remedies to women in order to strike a balance between the sanctity of marriage and the rights of women by virtue of Sec. 376B, 498A, 354 of the Indian Penal Code and Protection of Women from Domestic Violence Act, 2005.

It has been presented by the petitioner that marital rape has already been recognized under section 376B of the Indian Penal Code wherein when husband and wife are living separately under a decree of separation or otherwise then if a man has sexual intercourse with his wife, he shall be duly liable.

Further, it was reaffirmed that a  wife can also file a petition for divorce as marital rape can be brought under the grounds of ‘cruelty’. The Hindu Marriage Act, 1955; the Special Marriage Act, 1954; the Dissolution of Muslim Marriage Act, 1939; the Indian Divorce Act, 1869 and the Parsi Marriage and Divorce Act, 1936 all provide for ‘cruelty’ as a ground for divorce.

  • Misuse is a matter of concern

The protection that has been provided to married women in multiple ways has been tinted in the application.  The misuse of sections in cases of sexual harassment, 498A, and domestic violence has been pointed out. It has been said that n the application that if Exception II is struck down, then it can become an ‘easy tool’ for wives to harass husbands especially considering that the quantum of punishment in rape cases is much higher and the burden of proof is upon the accused.

  • Criminalizing Marital Rape can destabilize the institution of marriage and family

The applicants have taken different situations in consideration and mentioned circumstances wherein the wife who has had sexual intercourse with her husband files a complaint to Police or Magistrate out of sheer vengeance and impulsiveness, then the Police or Magistrate will have to take cognizance of the matter and the husband can be behind bars as prima facie satisfaction of facts can be established by the wife. This can outdo the marriage and will take a toll on the relations of the marital couple.

NCRB data for 2018 for 498A has been highlighted by the interveners. It says that 31,691 cases were acquitted while 9693 were withdrawn with conviction in only 4982 cases. These numbers clearly point out the misuse of the section.

Citing various judgments of the Apex Court the intervener brought to the knowledge of the court how complaints have been filed in the heat of the moment over trivial issues by the woman.

The applicant/ intervener contented that the removal of Exception II of section 375 of IPC might result in frivolous litigation and a sharp increase of filing of malicious complaints, the effects of which will be significantly greater on the accused because of the quantum of punishment.

  • Lack of evidence can cause jeopardy to innocents.

The application further mentioned that proving or establishing consent for sexual intercourse in a marital relationship will be extremely problematic for all the stakeholders involved. They further said,

“The main ingredient to prove statutory rape is establishing lack of consent and in the cases of marital rape, there will be no way to prove consent except the testimony of the wife. Consent cannot be presumed in such cases.

Even if physical abuse at the hands of the husband is proved, it does not imply the existence of sexual violence, especially within the confines of marriage because physical violence might be considered as corroborative evidence in proving the consent of the wife. “

The judgment in the case of Vinita Saxena v Pankaj Pandit was quoted where the court observed that “marriage without sex is an anathema”. It is therefore being contended by the applicants that due to difficulty arising because of lack of evidence in the cases of marital rape if criminalized, will lead to wrongful and frivolous litigation for all the stakeholders and will defeat the purpose of the law.

  • International law cannot be taken into account when it is inconsistent with municipal laws

The settled position in India that until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter has been highlighted in the application.

It has been brought to the notice that since the judiciary cannot review domestic laws in the light of international law and the former are binding, only the State through its legislative wing can modify the law to bring it in accord with Treaty obligations. Such matters are in the realm of State policy and are, therefore, not enforceable in a Court of law.

The impleader/ intervener application by Purush Aayog through Advocate Vivek Narayan Sharma, Advocate Aditya Manubarwala and Advocate Shoaib Haider is an effort by a responsible organization to build a gender-equal society in which men and women have equal respect, opportunities, rights, and responsibilities; are equal before the law or enjoy equal protection of the laws, and have equal access to justice.

Read the intervention application here:

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