The Delhi High Court on Monday reiterated that the immunity granted to a husband from the offence of rape for having forceful sexual intercourse with his wife is based on intelligible differentia being created between married vis-à-vis unmarried couple and not on the “fiction of consent”.
The Division Bench comprising Justice Rajiv Shakdher and Justice C. Hari Shankar is hearing on daily basis a bunch of petitions challenging Exception 2 to Section 375 to the extent that it exempts marital rape from falling within the purview of the offence of rape.
Advocate Karuna Nundy, representing petitioner NGOs RIT Foundation and All India Democratic Women’s Association, began her rejoinder submissions by contending that the Constitution is a transformative document which has transgressed from social morality to constitutional morality over time.
She referred to the landmark Sabarimala case wherein it was cited that the Constitution framers took upon themselves the task to transform the Indian society by placing those who were denuded of their human rights before the advent of the Constitution, into control of their own destinies by the assurance of equal protection of law and stressed that in the absence of any legislation, the citizen’s right travel by way of judges’ social and personal morality reaching towards the constitutional morality. To buttress her point, she drew the attention of the Bench to how women’s rights have evolved over the years as enshrined in the Constitution-given rights to women of right to vote, right to worship, right to work without being sexually harassed and recently, the right against being divorced with mere utterance of three words.
Citing another paragraph from the Sabarimala judgment wherein it was observed “an indispensable facet of an equal life, is the equal participation of women in all spheres of social activity”, she stated that the same includes sexual intercourse in marriage as also the right to say no.
Additionally, she applied the ‘inversion test’, conceptualized by the Apex Court in the case of “Nevada Properties vs. State of Maharashtra and Another” to decide what can be treated as ratio of a decision, and showed how the judgment given in the ‘Independent Thought’ is a binding precedent with respect to Exception 2 to Section 375 of the Indian Penal Code and could lead to marital rape exception being struck down.
Another limb of her arguments centered on the fact that the outdated notion of Hale’s principle and that ‘a woman is no more than a chattel’ has long back been discarded in English Courts. For this, she relied on House of Lords decision in “R vs. R” and “Rex vs. Clarke”.
The Bench has asked her to address the arguments with respect to whether a new offence would be created if the court strikes down the provision; as also whether Exception 2 to Section 375 is manifestly arbitrary or discriminatory or both from the standpoint or Article 14.
Justice Shankar pointed out that presently, a relief is available to a husband in the form of Section 482 of the Code of Criminal procedure to get a complaint filed by his wife for the offence of rape quashed for falling within the domain of erroneous exercise of jurisdiction. “But if it is struck down, tomorrow if the same complaint is filed, he cannot go there because it an offence now. So, the act which as of today he can directly get quashed, he cannot have that relief once it is struck down. So then again the question will be are we not creating an offence while doing this?” he questioned.
He further questioned thus:
“Can a court strike down a statutory provision as unconstitutional on the ground that it violates the Fundamental Rights, if by doing so it is creating an offence?”
Advocate Nundy would continue addressing the Bench on these aspects.