A two-judge bench of the Delhi High Court Wednesday gave a split verdict on the question of criminalising marital rape. While Justice C. Hari Shankar rejected the plea to criminalise rape within marriage, Justice Rajiv Shakdher, who headed the bench, struck down as unconstitutional the exception to IPC Section 375 that says sexual intercourse with wife aged 15 or above is not rape even if it happened without her consent.
Justice Shankar also noted that the issue requires consideration of various aspects, including social, cultural and legal, and hence any change in the law has to be carried out by the legislature.
The issue will now go to the Supreme Court.
The Delhi HC decision comes a little more than a month after the High Court of Karnataka acknowledged the legality of ‘marital rape’, in a judgment delivered on March 23. The succinct fact of the case was that the husband used to demand and perform acts of sexual intercourse that were unacceptable to his wife, and was also sexually abusing his nine years old daughter. The Karnataka HC while delivering its judgment in the writ proceedings declared Section 375 of the Indian Penal Code (IPC) violative of Article 14 of the Constitution.
What The Karnataka High Court Said
The law of rape as codified under the IPC made an exception of sexual intercourse or sexual acts by a husband with his wife, if the wife is above 15 years of age. In simple words, a sexual intercourse or sexual act between wife and husband, where wife is above 15 years, will not be considered rape even it it happens without her consent. The Karnataka High Court found this exception to be violative of the equality clause of Constitution, i.e. Article 14.
Article 14 envisages that every person must have equal protection of laws. An equal protection of laws clause basically enables the State to discriminate among human beings for certain beneficial purposes which is not possible without distinction. The doctrine of intelligible differentia is the touchstone on which the power of the state to discriminate is examined. Doctrine of intelligible differentia simply postulates that State is empowered to make discrimination through the instrumentalities of law (Acts, Regulations etc), provided that discrimination sought has a nexus with the objective sought to be achieved through the law.
Another touchstone on which the constitutionality of the State’s exercise of power to make laws to discriminate for beneficial purpose is assessed is the principle of arbitrariness.
The Karnataka HC found that “The Code practices discrimination. Under the Code every other man indulging in offences against women is punished for those offences. But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality.”
Thus, the court found that Parliament has made unconstitutional discrimination between rape committed to married woman and those who are unmarried. As far as the case of married woman is concerned, Section 375 provides exception where a woman has given consent for sexual intercourse to man who is not her husband, believing him to be her husband and man is aware of such fact. Thus, there is an additional safeguard for a married woman.
The JS Verma Committee Reference
The High Court also quoted the JS Verma Committee, which perused many European and American jurisdictions and cited the common law of coverture according to which a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim.
The Karnataka HC rejected this age-old common law of curvature on the ground of it being violative of equal protection of laws clause. It must be underscored here that the Verma committee despite expressing its reservation to the exception of husband-wife sexual intercourse with respect to rape law in the IPC, it did recommend the removal of the exception. The committee also recommended: “A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation.”
However, the legislature did not heed to the recommendations of the Verma committee. Not only did it keep the exception intact, it also widened the protection afforded to matrimonial relationships.
The author is a PhD fellow at Hamburg University. He has written two books on financial laws.
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