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Whether Marital Rape should be criminalized: in context to Exception: 2 of section 375

What is Marital Rape?

Marital Rape means the act of having sexual intercourse with a wife by her husband without the will or consent of his wife.

Constitutionality and court's power to interfere

If the courts are to interfere in this issue then the only option available to them is to check the constitutionality of the exception 2 of section 375.
  1. Article 14
    The equality which the Article 14 talks about is that equals may be treated equally and unequals may be treated differently that is to say there cannot be same laws for every class of people and certain classification is required.

    Here, test of valid classification has to be seen to ascertain that whether the husband constitute a separate class. To pass the test of valid classification two conditions has to be fulfilled:
    1. The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group:
    2. The differentia must have a rational relation to the object sought to be achieved by the state in question.
      [This test was expressed in State of W.B. vs Anwar Ali Sarkar, AIR 1952 SC 75 and further in many cases.]

      Husbands cannot be treated at par with the strangers as he has a relation with his wife created through marriage and therefore they constitute a different class and since the objective of the legislature is also very clear i.e. to put the husbands separate from the strangers this exception passes the test of valid classification. Striking down of Exception: 2 will put the husband and the strangers in a same position.

      It is also pertinent to mention here that, there is always a presumption in favour of the constitutionality of an enactment and the burden of proof is upon the person who challenges the enactment. [refer: Ramchand Jagdish Chand vs Union of India, AIR 1963 SC 563]

      But, to the contrary in the case of [Subramanian Swamy vs. CBI, (2014) 8 SCC 682] constitutional bench of the Hon'ble Supreme Court has held that, "If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial."

      And in the instant case the object of exception 2 of section 375 seems to be discriminatory as it does not include and make liable the husband for the same acts for which the others would be punished. Also, a husband who is living separately with his wife and has sexual intercourse has been made liable and punishment has been prescribed under section 376B but the husband living together has not been made liable for the same Act which seems to be against the rights to live with dignity of the wife.
  2. Article 21
    It was held in [State of Punjab vs Ramdev Singh, 2004 (1) SCC 421] Rape is a crime against basic human rights and also violates most cherished fundamental right guaranteed under Article-21 of the Constitution.

    Exception 2 of section 375 is of colonial era and seems to consider woman/wife as a property of husband by exempting him from liability. It also seems to put husband on a dominant position. But merely entering into a marriage does not make wife the property of the husband. She also has a right to live with dignity, free from exploitation [Bandhua Mukti Morcha vs Union of India, (1984) 3 SCC 161].

    The Constitutional Courts have the power to invoke and exercise their jurisdiction and invalidate a substantive law if it fails the test of reasonableness. Earlier too in the case of [Mithu vs. State of Punjab, (1983) 2 SCC 277] Hon'ble Supreme Court had invalidated a substantive law i.e. section 303 IPC because it could not pass the test of reasonability and was violative of article 21.
  3. Can a potential of abuse be a ground to struck down the statute?
    Every law has a potential for abuse. A legislation may be passed for the benefit of certain groups but there might be certain other group or groups that face false cases but that doesn't mean that the whole offence be removed/struck off from the statute book. The constitutionality of the statute has to be checked and the social impact that it has must be checked. Though there are legislations that are misused, but they are beneficial for the society and therefore, necessary to prevent atrocities.

    Misuse or abuse cannot be a sole ground to test constitutionality.
  4. Court's power to interfere
    If Exception 2 is struck down then it will form new offence which the court cannot do as it is beyond the jurisdiction of the courts.

    Marital Rape, though not recognized as an offence, it can be made so by the legislature and not by the courts being beyond their jurisdiction. Courts can only look into the legislation if there is a challenge to its constitutionality and thereby declare it unconstitutional or ultra vires if it fails the test of being constitutional.

    Privy Council, in the case of [Crawford vs Spooner, (1846) 6 Moore PC 1] stated that:
    We cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend and , by construction make up deficiencies which are left there.

    It was further observed in the case of [State of Jharkhand vs. Govind Singh, AIR 2005 SC 294, p. 297] that the courts cannot reframe the legislation for the very good reason and it is that it has no power to legislate.

Independent Thought vs Union of India (2017) 10 SCC 800

It is important to discuss this case here as exception 2 of section 375 IPC,1860 was dealt in here in respect to the age. In this case the court refrained from considering or dealing the marital rape issue since the issue was not raised by the petitioner or intervener {Para 108}. But, the court observed that if it completely strikes off the exception-2 it would be creating a new law which is beyond the powers and jurisdiction of the court.

In this case Hon'ble Supreme Court interpreted harmoniously the exception 2 of section 375 IPC,1860 and other conflicting provisions of special laws made for the protection of Girls such as POCSO Act,2012, PWDV Act, 2005, PCM Act, 2006 and JJ Act, 2015. It was held that, Exception 2 to section 375, IPC, 1860 insofar as it relates to girl child below 18 years is liable to be struck down and is to read down as:
Sexual intercourse or sexual acts by man with his own wife, wife not being below 18 years, is not rape.

So interpreted, instead of striking down Exception 2 it should be read down in consonance with the spirit of these legislations by doing so, court would not be creating a new offence which is beyond its jurisdiction.

It was also clarified and reiterated by the court in the paras 198 & 199 of the judgment 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". Therefore, this judgment cannot be considered to be a binding precedent on the issue of marital rape.

Evidence & procedure for Investigation

There is a big question mark as to what evidence would be produced and how the investigation will be made as whatever would have happened that would be inside the four walls and it is very rare and difficult that there will be any evidence in such cases.

Proof through medical examination would not be easy since it is a general presumption that in a marriage the husband and wife regularly indulge in sexual activities though it is possible as if there has been a case of rape injury marks to the person of the victim/wife would be found.

Reverse burden of proof

Since, there is a general presumption that in a marriage the husband and wife regularly indulge in sexual activities and also from the medical examination it would be easy for the wife and the prosecution to establish a prima facie case and ultimately, in each and every case, there would be a reverse burden of proof or it can be said that the burden of proof would lie upon the husband in each and every case to prove that the intercourse was not forceful or against the will and which would be very difficult for him to prove as there would be no proof in his favour.

Even otherwise, after the Criminal Amendment Act, 2013 the old section 114A of the Indian Evidence Act,1872 was substituted and it provides that for the purposes provided therein (i.e. under sec 114A) if the sexual intercourse is proved and the question is that it was with or without the consent of the woman and she states that it was without consent then it would be presumed by the court that she did not consent and therefore it places the burden of proof upon the husband that the sexual intercourse was not forceful.

Law on marital Rape is need of the hour

Marital Rape do exist and this fact cannot be ignored. Laws can be formulated in respect of marital rape but it should be done very cautiously and there must be adequate checks and balances and even if such laws are made the procedure to be followed must be liberal though the punishment could be harsher because the chances of it being misused is much more higher than the chances of it being beneficial.

Arnesh Kumar vs State of Bihar, (2014) 8 SCC 273

In this case Hon'ble Supreme Court discussed the gross abuse and misuse of laws made for the benefit of women particularly section 498A and 304B. It also laid down certain guidelines to be followed in respect of arrest of persons.

In respect of the abovementioned sections the observation of the court was that, "According to the National Crime Records Bureau statistics, in 2012, around 200,000 people including 47,951 women, were arrested in dowry related cases but only 15% of the accused were convicted. The period between 2006 and 2015, has seen a continuous fall in the conviction rate for cases, filed under this section. It has the lowest conviction rate among all the crimes under Indian Penal Code."

Husband living separately can be punished but husband living together cannot be punished. (Section 376B IPC)

Section 376B of IPC, 1860 provides for the punishment to the husband who has sexual intercourse upon his wife without her consent and who is living separately for whatever reason but there is no provision for a husband who is living together with his wife even if he has sexual intercourse with his wife without her express consent and will which is per se irrational.

Legislative intent: towards strangers

The rule of interpretation which applies here is the "rule of literal interpretation" which means that ordinary and natural meaning should be given to the words of an enactment and if such meaning is clear and unambiguous, effect should be given to a provision of a statute whatever may be the consequences.

And here the legislative intent is towards the strangers and the legislature has clearly expressed its intention by exempting the husband from liability.
A statute is to be construed according 'to the intent of those that make it'. [RMD Chamarbaugwala vs Union of India, AIR 1957 SC 628 p 631], [CCI vs SAIL, (2010) 10 SCC 744 para 52]

The duty of judicature is to act upon the true intention of the Legislature. [J.P. Bansal vs State of Rajasthan, (2003) 5 SCC 134] i.e. the function of the courts is only to expound or interpret and not to legislate.

It is a settled law that when the words of a statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. The same was observed in the case [Nathi Devi vs. Radha Devi Gupta, (2005) 2 SCC 271]

A close perusal of section 375 would show that there are certain acts which under common perception may not be considered rape but such acts are included in the definition of rape under section 375 IPC.

If the intention of the legislature was to punish a husband then they would have done so by not excluding the husband from the ambit of the definition of Rape under section 375 IPC.
Striking down of the exception: 2 would amount to modification and amendment of the intent of the legislature and ultimately the creation of a new offence. Now, this is beyond the powers of the constitutional courts i.e. the power to legislate or the power to formulate a new law.

What the constitutional courts are allowed to do is, they can check the validity of the law, check the constitutionality of the laws and interpretation of the constitution and the laws but they cannot step outside and formulate a whole new law neither they can direct the legislature to do so.

NCRB (National Crime Records Bureau) Data

Note:- Here is the mention of cases disposed of by courts only and it does not include the disposal of offences by the police.

  • Total Rape cases registered: 28046
  • Convictions in 2020: 4473
  • Acquittals in 2020: 6842
(Due to covid crisis and lockdown proper function of courts and other government agencies was also affected) 2018:
Data of the year 2018 on rape cases shows the actual picture.
  • Total pending cases of Rape as of 2018: 1,56,327
  • Convictions: 4,708
  • Discharged: 1,472
  • Acquitted: 11,133
  • Conviction Rate: 27.2 %
Total disposal of cases relating to "crimes against women" in the year 2015.
  • Conviction: 49,889
  • Acquitted: 1,80,428
  • Discharged: 4068
  • Conviction Rate: 36.16%
Global Status:
Gender neutral laws are there in other countries and also checks and balances are there.

Alternative remedies
As of now a probable remedy could be that the wife files a cruelty case u/s 498A or Prevention of Women from Domestic Violence Act, 2005 and also she may file a petition for judicial separation or divorce and if even then husband has intercourse with her then there is already a provision i.e. sec 376B. Following this procedure may act as checks and balances though there is still scope of misuse.

Rape is different from "intercourse held during continuance of a valid marriage". Though it is possible that the intercourse may have been done which was cruel in nature but it cannot be considered to be equivalent to rape. The intention of the legislature is clear and it is to punish a stranger and not a husband.

According to Karuna Nandy, counsel for the petitioners in the case relating to marital rape pending before the Hon'ble High Court of Delhi, the very object of rape laws is to ensure that women are not raped. Retaining the Exception will nullify the very object of Rape Law.

But, it is pertinent to mention here that, stiking off the exception 2 has a negative impact and would destroy the institution of marriage itself as a result of misuse.

Removing Exception 2 will put the husband at par with the other people and the punishment will also be the same as strangers/other people whereas under section 376B for a husband during separation punishment would be less as compared to the above mentioned husband which would amount to irregularity of the law and would be per se irrational.

One of the consequence of striking down of Exc. 2 to section 375 IPC would be that the courts would be filled with number of fake cases.

Consent and will.
When a person marries someone there is a presumption of consent to have intercourse and qualifies the test of section 90 IPC.

Will is a mental state of a person and consent is verbal (implied in this case). They may overlape, but are not same. Under section 375, IPC, the expression against her will would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression 'without her consent' would comprehend an act of reason accompanied by deliberation. [State of UP vs Chhteyal, (2011) 2 SCC 550].

For constituting consent, there must be exercise of intelligence based on the knowledge of the significance and moral effect of the act [Tulshidas Kanolkar vs State of Goa (2003) 8 SCC 590, para 6]. When a girl marries a man she has the knowledge and moral effect and consequences of a marriage and therefore there is a implied consent to have intercourse.

But, that does not mean that the husband has got the right to do anything he wishes. The husband cannot do any such act against the will of the wife, and if he is allowed to do so then that would amount to violation of the right to life and personal liberty of the wife provided under article 21 of the Constitution of India, 1950.

An argument in favour of the striking down of Exception-2 could be that rape violates the right to live with human dignity and any person accused of committing rape should be punished whether he is a stranger or a husband. In the case of [Bodhisattwa Gautam vs. Subhra, (1996) 1 SCC 490] Hon'ble Supreme Court observed that, Rape violates right to live which includes right to live with human dignity.

Also in the case of [Danial Latifi vs. Union of India, (2001) 7 SCC 572] Hon'ble Supreme Court held that, " Right to live with dignity" is included in " right to life and personal liberty"
In [Confederation of Ex-Servicemen Assns vs. Union of India, (2006) 8 SCC 399] it was held that right to life embraces within its sweep not only physical existence but the quality of life.

On the basis of the above discussion and prevailing issues in the society it can be concluded that the answer to the central issue of the topic can be that there is a need of law relating to marital rape as mere striking down of exception 2 of the section 375 would not sub serve the purpose. Moreover, since it is beyond the powers and jurisdiction of the courts to legislate and make a new offence, therefore, the legislature will have to take a step forward and make a specific law or through certain amendments of the existing penal statutes make marital rape, an offence but with necessary checks and balances so that its abuse may be prevented.

Cases referred (alphabetically):
  1. Arnesh Kumar vs State of Bihar, (2014) 8 SCC 273
  2. Bandhua Mukti Morcha vs Union of India, (1984) 3 SCC 161
  3. Bodhisattwa Gautam vs. Subhra, (1996) 1 SCC 490
  4. Confederation of Ex-Servicemen Assns vs. Union of India, (2006) 8 SCC 399
  5. Competition Commission of India vs SAIL, (2010) 10 SCC 744
  6. Crawford vs Spooner, (1846) 6 Moore PC 1
  7. Danial Latifi vs. Union of India, (2001) 7 SCC 572
  8. Independent Thought vs Union of India (2017) 10 SCC 800
  9. J.P. Bansal vs State of Rajasthan, (2003) 5 SCC 134
  10. Nathi Devi vs. Radha Devi Gupta, (2005) 2 SCC 271
  11. Ramchand Jagdish Chand vs Union of India, AIR 1963 SC 563
  12. RMD Chamarbaugwala vs Union of India, AIR 1957 SC 628
  13. State of Jharkhand vs. Govind Singh, AIR 2005 SC 294
  14. State of Punjab vs Ramdev Singh, 2004 (1) SCC 421
  15. State of UP vs Chhteyal, (2011) 2 SCC 550
  16. State of W.B. vs Anwar Ali Sarkar, AIR 1952 SC 75
  17. Subramanian Swamy vs. CBI, (2014) 8 SCC 682
  18. Tulshidas Kanolkar vs State of Goa (2003) 8 SCC 590

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