Exception for marital rape under Section 375 IPC must be viewed as an instrument of oppression: Rebecca John

Senior Advocate Rebecca John argued before the Delhi High Court that if a woman is subjected to sexual intercourse without her consent, then the exception to Section 375 of the Indian Penal Code (IPC) should be viewed as an instrument of oppression [RIT Foundation v. Union of India]..Citing the Supreme Court’s judgment in the Puttaswamy case, John argued that the validity of Exception 2 has to be tested not just with reference to the object of State action and the twin test laid down in that judgment, but also on the basis of its effect on the guarantees of freedom.“What are its intended and unintended consequences? And if that consequence, intended or unintended, is that a married woman can be subjected to sexual intercourse without her consent, then it is my submission that the Exception 2 must be viewed as an instrument of oppression,” she argued..John was arguing as Amicus Curiae before a Division Bench of Justices Rajiv Shakdher and C Hari Shankar in a batch of petitions demanding criminalisation of marital rape. The petitions have challenged the Constitutional validity of Exception 2 in Section 375 of the IPC..“What are the consequences assuming that this exception is allowed to exist? Can a court permit a husband who suffers from say venereal disease to have sexual relations with his wife without her consent? Can the husband still claim the exception? Assume the wife is suffering from ill-health and that doesn’t permit her to engage in sexual relations or might have detrimental effect to her health. Can it still be said that it is not rape,” she submitted..Addressing the Court’s earlier queries on the expectation of conjugal relations in a married relationship, she stated that expectation of sex or conjugal relations are there, and they can be mutual or unilateral. If that expectation is not met, the spouse has civil remedies available. But when that expectation becomes a physical act based on coercion and force and is non-consensual, thereby causing harm or injury, then that act must become an offence, she said.“Not every man is sought to be punished, not every sexual act within a marriage is sought to be punished. What is sought to be brought within the purview of the main definition is simply the act of having sexual intercourse with the woman who is your wife, in express disregard of her saying no. The protection given under Exception 2, in my mind, is not in a nature of exception but a complete exemption. In fact, the UK called it an exemption. It is in the nature of immunity. It is my argument that it is purely fictional.”John added,“If the exemption goes, all that the Court is doing is upholding the bodily integrity of a woman and putting people to notice. Your Lordships are saying that the immunity no longer exists and henceforth, a refusal, non-consent and a no of your marital partner must be respected, and that is the reason why this requires a serious judicial intervention.".The Senior Advocate also referred to the Supreme Court's judgment in Joseph Shine where the apex Court had struck down Section 497 of the IPC, which criminalised adultery. She submitted that though the apex court was dealing with a different issue, there are some commonalities between 497 and 375 as both the Sections highlight dominance of one partner and the subordinate role of the other. While 497 allowed only husbands to prosecute the other man for having relations with his wife, 375 gave him an exception, while in both the cases, the reverse is not true.“The Supreme Court, in this beautifully penned judgment, articulated that the modern marriage is a union between equals. What was written in the exception, given to us by a doctrine propounded by colonial masters, did not reflect either the Indian man or the Indian woman, certainly not the Indian marriage. The colonial masters have done away with that, but we continue to hang on to that legacy.”She further submitted it becomes imperative for a Constitutional Court to intervene when the structures of injustice and persecution, deeply entrenched in patriarchy, destroys constitutional freedom.“In doing so, Your Lordships will not be adopting a paternalistic approach, but will merely be fulfilling your duty to give effect to rights already enshrined in our Constitution. So, I would request that the judgment of Joseph Shine which while speaks of 497 and its constitutionality can be read with equal vigour because of the commonality involved.”.The Bench has now asked John to argue on the aspects of Section 376B (sexual relations with wife during separation) as well as 198 (prosecution for offences against marriage) and whether the provision of Section 511 (attempt to rape) can be attracted against a husband if the exception was to be struck down.The Court will continue the hearing on Friday..[Marital Rape] Woman’s consent central to immunity provided to husbands under Section 375: Rebecca John