Will exception to rape law be unconstitutional if it's gender-neutral, asks Delhi HC

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The Delhi High Court deliberated upon the challenge raised to the exception under the rape law that protects a husband from prosecution for a non-consensual sexual act with his wife and asked whether the same could be unconstitutional if the law was gender-neutral.

The court's query came while hearing a batch of pleas seeking to criminalise marital rape. Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape. "Suppose section 375 (definition of rape) of the IPC was gender-neutral and this exception said that when the two parties are married… according to you will the exception be unconstitutional even then?" Justice C Hari Shankar, who was part of a division bench headed by Justice Rajiv Shakdher, asked the amicus curiae. To this, senior advocate Rebecca John, who has been appointed as amicus curiae to assist the court in the matter, said she will endeavour to answer it on Friday. "Let me nuance it. I will try to answer both questions one way or the other.

I will come back to answer these questions tomorrow," John said. While advancing her submissions, she said not every man or sexual act in the marriage is sought to be punished here. "What is sought to be punished and brought within the preview of main definition (of rape) is simply the act of having sexual intercourse with his wife in express disregard to her no. The protection given under exception 2 is not in the nature of exception but an exemption," she said. She added that if the exception goes, all that the court is doing is one, upholding bodily integrity of woman; two, giving fair play to the definition and three, putting people to notice that this is no longer part of prohibition and no longer gives you immunity.

"Therefore, a marital partner's ‘no' must be respected. We are not talking about trivial cases. Rape by itself is a serious offence," she said. John further asked can there be expectations of conjugal rights and does that expectation translate into the right to have sexual intercourse without the wife's consent? "My answer as an amicus is that the expectation of sex or meaningful conjugal relations can be mutual.

There may even be a unilateral expectation. That also cannot be penalised because it is only an expectation. If that expectation is not fulfilled, then the spouse has every right to resort to civil remedies. "However, when the expectation within a marriage becomes a physical act which is non-consensual causing harm and injuries then that sexual act must become an offence," she said. She asked can a court permit a husband who suffers from venereal diseases and whose wife comes to know about and says no for physical relations, to still claim exception?

Another amicus curiae and senior advocate Rajshekhar Rao had earlier told the court that apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code (IPC). He had said that there was always a possibility of misuse of criminal offences and had the object of the legislation been to protect the institution of marriage, wives would not have been given the power to prosecute husbands for any offence including lessor sexual offences. Additional Solicitor General Chetan Sharma, appearing for the Centre, had told the court that an "informed consultation process" to examine the issue of criminalising marital rape has been "fast-tracked".

On January 17, the court had asked the Centre to clarify its in-principle position on the issue of criminalising marital rape after the government sought time to formulate and place its "considered stand". The Centre, on January 13, had told the high court that it was considering a "constructive approach" to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.

The bench is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law. Rao had earlier submitted that a married woman could not be denied the right to prosecute her husband if she believed that she was raped and in case of denial of a conjugal relationship, the remedy before the spouse is to file a plea for restitution and "not force himself upon her".

The central government, in its earlier affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands. The Delhi government has told the court that marital rape was already covered as a "crime of cruelty" under the IPC. The petitioners have challenged the Constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

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