The Delhi government on Tuesday, 11 January, argued that there are legitimate reasons to retain the marital rape exception in Section 375 of the Indian Penal Code (IPC), and that women have other legal remedies in case they are forced into non-consensual sex by their husbands.
"There is no dispute that a woman has right to bodily integrity, she has a right to say no. Just because this is not a criminal offence under Section 375, does that create a compulsion on a woman to have sex with her husband? Answer is no."Arguments by Delhi govt standing counsel Nandita Rao, according to LiveLaw
Advocate Nandita Rao, the additional standing counsel for the Delhi government, argued that women can file for divorce on grounds of cruelty or file a criminal case for cruelty under Section 498A of the IPC in such cases, and so it could not be said that the marital rape exception violates the fundamental rights of married women.
Section 375 of the IPC defines the offence of rape. While the section has been amended over the years to remove archaic concepts, emphasise on the importance of consent, and cover all relevant sexual acts, it still retains an exception for non-consensual sex by a husband with his wife.
This 'marital rape exception' has been challenged in the Delhi High Court, on the basis that it violates the fundamental rights of married women, including Article 14 (right to equal treatment by law) and Article 21 (right to life and personal liberty) of the Constitution.
The Delhi government told the high court bench of Justices Rajiv Shakdher and C Hari Shankar that the exception doesn't take away a married woman's right to say no to sexual intercourse, and therefore did not violate her privacy or dignity (the basis on which an Article 21 violation has been claimed).
However, the judges did not appear to find this argument convincing, arguing that the existence of other remedies didn't take away the violation of a woman's dignity.
"You're saying that she can go and seek divorce on the ground that she doesn't want to cohabitate. That is not the point," they said, according to LiveLaw. "The point is an offence has taken place. The exception created a firewall. Is that firewall justifiable on the test of Articles 14 and 21, it is only that particular narrow aspect that we have look into."
The bench also noted that several other countries around the world had gotten rid of similar marital rape exceptions, and the mere fact that there was a relationship of marriage couldn't be used to treat married and unmarried women differently.
The Delhi government's counsel tried to argue that there was in fact an intelligible differentia that warranted such separate treatment, as the social and economic effects of marital rape were different. While a child born because of a rape outside of a marriage "wouldn't be legitimate," a child born because of marital rape would be.
[Note: It is unclear how this argument is relevant to an offence against an individual person, or how even following its logic it would affect the constitutionality of the marital rape exception.]
'Court Doesn't Have Power To Create New Criminal Offence'
The Delhi government also argued that striking down the marital rape exception would amount to creating a new offence, which the judiciary does not have the power to do.
"Sexual assault may be an offence under other provisions but Section 375 is not an offence for the group of citizenry defined as husbands. So if your lordships strike off the exception, you will be creating a new offence," Rao said, according to LiveLaw.
She tried to use the comments of the Supreme Court in 2017 when it struck down the part of the marital rape exception that made it apply to child brides to support this argument. She noted that the apex court had said it was able to make that modification because this would bring the IPC in consonance with the Protection of Children from Sexual Offences Act (POCSO).
However, once again, the judges expressed scepticism, though they observed that this issue would need to be addressed.
"I don't think this a very sound argument... what is under challenge is a statutory provision, the court always has power to strike off a provision," Justice Hari Shankar said, LiveLaw reported. "We are not making something an offence which is not defined in statute."
As the definition of rape per se covers even non-consensual sex within a marriage and only includes an exception for marital rape, the judges observed that the case before it was not about creating a new offence, but testing the validity of that exception.
"This exception is a firewall, we are testing if it stands judicial scrutiny."Bench according to LiveLaw
Rao suggested that if the high court found that the marital rape exception violates Article 21 of the Constitution, they would have to strike down the whole of Section 375 as husbands would have no remedy since the definition of rape in the IPC is not gender-neutral.
After the Delhi government's arguments concluded, the matter was adjourned till Wednesday, 12 January, when it will be taken up again at 3 pm.
Earlier on Tuesday, the high court had continued to hear arguments by advocate Raghav Awasthi for one of the petitioners challenging the marital rape exception.
Awasthi had pointed out that the Philippines Supreme Court had struck down a similar marital rape exception in its laws after noting that their country had ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
He noted that India had also ratified CEDAW and that the high courts and Supreme Court had the power to fill a vacuum in domestic law to meet international legal obligations.
The court had also been informed that one of the petitioners in the case was a man who had challenged the definition of Section 375 after being booked under Section 377 of the IPC ('unnatural' offences). His petition will be taken up after the arguments on other petitions challenging the marital rape exception are finished.
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