In the process of the Delhi High Court on 10 January 2022 continuing
the hearing of petititons on Marital Rape, there is unclarity on it's present
legal stand and ambiguity in the several contentions lately raised.
At the outset of the hearings, the main contention raised was on challenging
the exemption - II of S.375 of the Indian Penal Code (IPC). Besides, the state
failure to take the necessary steps to criminalize the offense of Marital Rape
In the past decades as well there have been various attempts to remove the
exceptions and yet have not been achieved. It is a long awaited reform since
1991 though there have been mixed reviews about it in the past and in the
According to the first submission by the counsel Ms. Karuna Nundy on 10 January
2022, for the petitioners, All India Democratic Women's Association and RIT
Foundation, ignited the extinguished flare of 2017 decision in Independent
Thought v. The Union of India.
Precisely, there were three limbs of submission by Ms. Nundy lately:
- There is no presumption of the constitutionality of pre-constitutional
- Striking down a Marital Rape Exemption ('MRE'), will not create a new
- While the 'MRE' and impugned provisions violated most of the Fundamental
Rights including Art. 14, 15(1), 19(1)(a), and 21, they failed to pass the
Constitutional muster. Moreover, it is the Art. 13, giving the explicit
mandate to the court to set aside the same without awaiting legislative
Why Section 498A IPC not a remedy against the Marital Rape?
On 24 January, the one of the two amicus curiae Senior Advocate Rebecca John in
the matter told a court that retention of the exemption - II of S.375 IPC is not
constitutional and hence will not create a new offense. Previously two days back
as well she argued the same.
She submitted that existing provisions in various legislations including S.498A,
S.304B of IPC, Domestic Violence Act and other civil remedies are not sufficient
to deal with the offense of rape concerning wife alleging rape by her husband.
Additionally, she argued that there is no "commonality
" between the said
provisions and S.375 of IPC, though certain elements of the "base offense
may exist, but every offense must be separately prosecuted in consideration of
its nature and degree. Hence, the above mentioned provisions are not
"substitute" or act as an alternative to S.375 of IPC.
Subsequently, she referred to Nimeshbhai Bharatbhai Desai v. State of Gujarat
of 2018 in
which it was concluded that the "complete abolition of statutory" exemption is
the first necessary step to teach societies that dehumanization treatment of the
women is not tolerated and marital rape is not a "husband privilege" instead it
is a violent act and a injustice that must be criminalized.
She further referred to the "twin tests" of Article 14 of the Constitution of
India through observations of the two judgments, Navtej Johar v. Union of
(2018), and the State of Tamil Nadu v. National South India River
Interlinking Agriculturist Association
(2021) to uphold criminalization.
In the latter case-law, the court clearly stated that there must not be
"over-emphasis of objective" of the law, instead of its effect and particularly
when the objective is ostensibly to be incorrect. Moreover, that is not the
"true meaning of the equality clauses" under the Indian Constitution.
Sr.Adv. John further argued that while the court has to take the twin test for
examining the 'constitutionality of exception - II' yet the observations of the
Apex Court on the said issue given in the 'two preceding decisions must also be
taken into consideration.'
On 28 January Delhi High Court continued the hearings, Advocate J Sai Deepak,
representing the Men Welfare Trust (MWT), concluded on the rejoinder submissions
in opposition to the criminalization of marital rape. This expresses not to
declare Exemption - II of the S.375 as unconstitutional on the sole point in
order to protect "the civil liberty" of the husband.
Mr. Counsel relied on the judgment of Government of Andhra Pradesh & others
v. Smt. P. Lakshmi Devi
in 2008, especially the para 73 observation by the
two SC Judges bench:
"However, though while considering economic or most other legislation the Court
gives great latitude to the legislature when adjudging its constitutionality, a
very different approach has to be adopted by the Court when the question of
civil liberties and the fundamental rights under Part III of the Constitution
Hence, it infringes the civil liberties of the husband, "creating a new offense"
or expands the provisions of an existing offense under Article 226 of the
Constitution. And as the court cannot change the dynamics or objectives of the
law as intended by the legislature. Besides, he argues that there is an existing
law to deal with the act of "spousal sexual violence" and MWT was not against
the legal recognition of it.
Further, he submitted that consent goes handy with the context, and marriage and
marriage institutions are "the basis for such intelligible differentia
from the fact that the petitioners have challenged exception - II of S.375,
S.376B of IPC and S.198B of C.r.P.C. It is the ipso facto that they were "aware
of the existence of specific and special treatment" in the legislation, "the
" of which is the existence of marriage.
Thus the exception cannot be held to be "manifestly arbitrariness
they have established a case against themselves that there is an "intelligible
" Therefore, "marriage" forms the basis of such differences and
the exception cannot be invalidated on the ground of violation of Article 14 of
the Constitution as submitted earlier by the petitioner.
Similar contention was covered in the judgment of:
- Mohd. Hanif Quareshi v. State of Bihar,
- Beeru v. State of NCT,
- State of MP v. Rakesh Kohli,
- Bombay Dyeing & Co v. Bombay Environmental Action group,
- State of Bihar v. Bihar Distillery,
- Census Commissioner v. R Krishnamurthy and
- Harakchand Banthia v. UOI.
Additionally, Mr. Counsel also relied on the 172nd Law Commission Report of
2002 and "the Parliamentary Committee Report dealing with S.375 of IPC" and
international position, specifically U.K law on the subject.
Still Pardoning Marital Rape?
On 31 January 2022, Adv.Karuna Nundy talked about the moral rights of married
womens. That is to refuse to adjure the forcible sexual intercourse and in fact
it is about the rights of a wife to clearly say no and making it stand that
marriage does not give a license to "ignore consent."
The initial argument Adv. Nundy this time submitted that the Constitution of
India is "transformative" and further the citizens are transforming from it. And
in the absence of it women would never have a universal suffrage that are the
right to vote, to worship, to evade sexual harassment at workplace and against
As a result the imperative need to adjudicate the exemption - II of the S.375,
is about "equal dignity and respect" to womens in India and more so ever to
achieve the constitutional goal.
Subsequently, she relied on the decision of the Supreme Court in Nevada
Properties Pvt Ltd v. State of Maharashtra (2019), applying the "inversion test"
evolved by the Supreme court to determine the ratio of a decision.
According to it, the court first must look upon the proposition of law and then
include the word in the proposition to reverse its meaning to answer whether a
decision is a precedent for that proposition or not. In case the answer is
positive, the case is not a decision for that proportion and if negative, the
case is a precedent for the other propositions and ought to be for other
propositions as well.
Furthermore, she applied for this test in the present case that since if the
observations are to be reversed here, the conclusions could not have been
reached as it did.
However, she was questioned by Justice Shankar on two aspects, first whether the
court will create a new offense in case exception - II of S.375 is diminished.
Second, for S.482 C.r.P.C if an F.I.R is registered against husband by wife for
rape under S.376. Subsequently she admits he is her husband, then there can't be
an offense under S.375 and 376. Consequently, accused can go under S.482 C.r.P.C
or even Article 226 of the Constitution stating that there is no offense and ask
to quash it. But as a current proposition to strike down the exception and make
it an offense for husband, then he cannot go under S.482 or Article 226 as
because it's now an offense. So, the act which he can get it quashed currently,
cannot have "relief if it's struck down." Thus, the question arises whether the
court is creating a new offense?
Adv. Karuna Nundy replied that she will be addressing the questions in a nuanced
manner in her submissions.
Moreover, Justice Shanker clarified that exception:
II of S.375 is based on "qualitative difference" in terms of relationship
between the parties and not certainly on the "fiction of consent."
In concluding the research note or article, the hearing on petitions are still
going on and the answer is yet to come. As mentioned in the beginning there have
been various attempts to criminalize marital rape but not successful opposing
from the several contentions raised and precedents referred.
I firmly believe that contrasting arguments are equally and decisively crucial
as to sustain the basic features of the Constitution. There have been several
instances where the filed F.I.Rs are false or there is misuse of the existing
laws and making it more stringent and criminalizing it will not heavily work in
the favor of both parties.
However, I further believe that misuse of law is not a ground
to not bring a
law that anyhow helps the majority of the womens victimized of the marital
rape as per the several datas by NCRB 2019, and other reports done occasionally.
And the question raises here, if the cases are not reducing, what is the
effectiveness of the existing laws and why can't consequently criminalize it?
Award Winning Article Is Written By: Mr.Pragyanshu Gautam
Authentication No: FB205890281611-27-0222