Citation: 2022 SCC OnLine Del 1404

Court: High Court of Delhi

Date of Judgement: 11.05.2022

Coram: Hon’ble Mr Justice Rajiv Shakdher and Hon’ble Mr Justice C. Hari Shankar

Facts

In this case, a petition about marital rape exception (‘MRE’) in S. 375, Exception 2 of the Indian Penal Code (‘IPC’)[1], 1860 was filed by the RIT Foundation, All India Democratic Women’s Association (AIDWA) along with other two individuals. It was about the feasibility of criminalizing a husband and making him liable for raping his wife who does not fall under the category of belonging to 18 years of age. It was also contended by the petitioners that in continuance with the striking down of MRE, S. 376B[2] of the IPC should also be struck down, which deals with a rape committed by a husband, who is separated from his wife.  

Issues Raised

Based upon the submission made by both parties, the following issues were considered by the court, and they are as follows:

• Can the problems of ‘social disharmony’ and ‘damage to marriage and family systems’ as contentions raised by the government arise or not?
• Can the difference between a relationship of marriage and the acts that are done outside the marital relations be considered for ‘intelligible differentia’ under Article 14[3]?
• Is it feasible to incorporate the dimension of marital relationship within the definition of ‘rape’?
• Whether a rape committed by a husband upon his wife be considered for a harsher punishment under the law?
• Whether the striking down of MRE would be perceived as a new offence to be created?

Contentions

The main contentions raised by the Petitioner, in this case, are as follows:

Contentions raised by the Petitioner

It was contended that:

• MRE in its original form, in the penal statute is devoid of the goals of constitutional importance like autonomy, dignity and gender equality implicit in articles 15, 19(1)(a) and 21.
• The MRE should be struck down as it furthers the notion that the woman is her husband’s property[4] after marriage and her sexual autonomy[5], bodily integrity and human dignity vide article 21 is taken away and the husband takes the position of her sexual master.
• MRE violates the reasonable classification test of Article 14 as it creates a classification between a married and unmarried woman and does not give equal rights to both of them.
• The MRE provided in Exception 2 of S. 375, IPC should be struck down and the punishment under S. 376B should also be struck down along with the S. 198B CrPC as it provides for a lesser sentence and discriminate between the offences committed by the separated husband, actual husband, and a stranger.

Contentions raised by the Respondent

It was contended that:

• The MRE should not be treated as a different offence as it would lead to the destruction of the institution of marriage.
• The striking down of MRE under Exception 2 of S. 375, IPC would lead to a new offence being created in that regard and despite several other laws for the protection of women, this creation would lead to an imbalance of status between parties.
• If marital rape is made a different offence, it would be very difficult to prove its validity and it would become a tool of misuse by women.
• The punishment under S. 376B, IPC is different from the regular offence as it neither falls in the category of a cohabiting husband nor a stranger.

Rationale

The final decision of the court was divided as there was a split verdict thereof. The rationale for the judges’ observation is discussed hereunder:

Rajiv Shakdher, J.

As per Rajiv Shakdher, J. marital rape can be considered as rape, and he had observed Exception 2 to be unconstitutional. As per his rationale, the S. 376B, IPC and S. 198B, CrPC were also considered to be violative of Articles 14, 15, 19(1)(a) and 21[6] and can be therefore held to be unconstitutional in concern of the husband or separated husband who procures sexual intercourse with his wife that is not under 18 years of age. It was discussed that MRE does not fall within the criteria of reasonable nexus under Article 14 as it protects an act which would otherwise be rape if not within the relationship of marriage, hence the classification is unreasonable and arbitrary, and it would constitute real rape.

C. Hari Shankar, J.

It was observed by C. Hari Shankar, J. that there are various relationships between a man and woman including that of husband and the sanctity of marriage has to be protected, hence to undermine these relations would be the ignorance of existing reality, the intelligible differentia under article 14 was created by marriage. The relationship of husband and wife has an important incidence of ‘legitimate expectation of sex’ and that has to be observed. The situation of marital rape as an ‘imposed conception’ was also negated by C. Hari Shankar, J. and it was seen that it is not to be treated as a conception at all and hence, it is to be believed that the marriage is to be seen as a real and salutary institution which is inclusive emotional and psychological unity – he observed that the marriage is an institution to which the individual rights as such cannot be subservient and it cannot be made and fundamentally erroneous ground.

[1] Indian Penal Code, 1860, § 375, No. 45, Acts of Parliament, 1860 (India).

[2]Id., § 376B.

[3] INDIA CONST. art. 14.

[4] In Joseph Shine v. Union of India, offence of adultery was struck down on the ground that a woman is considered her husband’s property after marriage.

[5] In X v. X, Mat. Appeal No. 151 of 2015, it was seen that treating wife’s body as husband’s own is marital rape.

[6]INDIA CONST. arts. 14, 15, 19 cl. (1)(a), 21.

Name of the Author : Suhail Khan

Designation : Research Scholar, Jamia Millia Islamia

E-mail address : khan.suhail83@gmail.com