[Marital Rape] Status of marriage not sufficient reason to deny wife right to prosecute husband: Amicus Rajshekhar Rao

Senior Advocate Rajshekhar Rao argued before the Delhi High Court on Tuesday that the status of marriage between two parties cannot be sufficient reason to deny a wife the ability to prosecute her husband for marital rape [RIT Foundation v Union of India].

. “Given the length and breadth of material that is before your Lordships, I do not believe it is possible for anyone to say that there is any justifiable basis in thinking that the status of marriage between the two parties as being sufficient to deny the wife the ability to prosecute her husband for the act of rape,” he said.

. Rao, who is Amicus Curiae in a batch of petitions challenging the exception provided in Section 375 of the Indian Penal Code which exempts non-consensual sex between husband and wife from the ambit of rape, made his submissions before a Division Bench of Justices Rajiv Shakdher and C Hari Shankar .

The petitions demanded criminalisation of marital rape, which is currently not an offence by way of the said exception.

. He further argued,

“Perhaps now it is time for your Lordships to give the provision a burial it deserves To say that because Parliament has enacted it and Parliament will perhaps take care in future, I don't think that should be the course…Parliament had the opportunity and ability to do it after the Constitution was enacted and the mandate under Article 13(1) came into play. It had the opportunity to it after reports of several Law Commissions, but it did not.”

. On the argument that a new offence would be created if the exception is struck down, Rao cited the Supreme Court judgment in Independent Thought . In this case, the apex court read down the earlier exception to Section 375 and held that sexual intercourse with a girl below 18 years of age is rape regardless of whether or not she is married.

Rao submitted that when the apex court read down the same exception, it had said that it was not creating an offence, since the offence already existed under Section 375.

“There can be no cavil of doubt that the courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Section 3 and POCSO. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO,” the Court had held in that judgment.

He said that in doing so, the apex court had simply removed a common law fiction which had become anachronistic and offensive.

On the contention of the opposing parties that the Supreme Court had refused to tackle the marital rape issue in Independent Thought , Rao said that though the petition in that case did challenge the whole provision, a statement was made later that the issue will be restricted to the interest of children, and therefore, the Court did not delve in the issue of marital rape.

. Concluding his submissions, the Amicus referred to a tag line of Doordarshan which was used to urge people to wear helmets while riding two-wheelers.

While the original line read, “Marzi hai aapki, aakhir sar hai aapka” ( It is your choice, ultimately it is your head), Rao said that in the context of a woman's inability to prosecute her husband for rape, the tagline should now be read as “Marzi hai aapki, aakhir var hai aapka” (It is your choice, ultimately, he is your husband).

. The Court asked Senior Advocate Rebecca John to address the Court on the proposition made by Rao that the exception in Section 375 takes away or abridges the right of a wife to proceed against the perpetrator of rape if the perpetrator is her husband. Justice Shakdher also asked John to address the issues of the Act and its scheme.

. The Bench also asked Additional Solicitor General Chetan Sharma to be ready with his submissions. Sharma said that the consultative process has been fast-tracked by the Union government.

Justice Shakdher said that the Court cannot let the issue hanging for a long time, because the longer is hangs, the more the speculation would set in.

. On the subject of speculation, Justice Shankar remarked that he had read in one journal that the two judges hearing the arguments in this case are going to differ with each other and that the matter will be referred to a third judge.

“I found one very imaginative journal that said that we are going pass differing orders and they have said that it will be referred to a third judge who is already writing his judgment. Next thing we know, we will also have our judgment before us!” he said.

Justice Shakdher said that the two judges would meet and discuss the issue amongst themselves, and that it has been very difficult to do so because they are sitting separately.

. Arguments in the case will continue on Wednesday, January 19.

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[Marital Rape] Status of marriage not sufficient reason to deny wife right to prosecute husband: Amicus Rajshekhar Rao

Prashant Jha

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