Beginning her submissions to the Delhi High Court as an amicus curiae (ie a court-appointed expert), senior advocate Rebecca John on Wednesday, 19 January, delved into the history of the marital rape exception and broke down what the offence of rape in Section 375 of the Indian Penal Code is supposed to be.
"The woman's consent is fundamental to the invocation of 375 and so we cannot wish it away," John explained.
She argued that Exception 2 to Section 375, by saying that sexual acts by a man with his wife are not rape, "in effect gives a go-by" to a woman's consent even though consent is so fundamental to what the offence is.
In a powerful argument, she showed that even Exception 1 to Section 375, which just says that a "medical procedure or intervention shall not constitute rape" has to be construed reasonably and keeping consent in mind.
"It cannot possibly have been Parliament's intention that a woman goes for a cataract surgery and a procedure has been done on her vagina without her consent," the senior advocate, one of India's leading experts on criminal law, pointed out.
"When we look at exceptions drafted in absolute terms," she elaborated, "We should not allow an absurdity to prevail."
The Outdated Reason for the Marital Rape Exception
The amicus took the court back to the draft IPC prepared by Lord Macaulay, and the notes explaining its provisions. The notes to the original text by Macaulay expressly said that the marital rape exception is "in favour of the conjugal rights of the husband".
She explained how this tied to the English common law doctrine of coverture or implied consent, that "by entering into a marriage, a wife gave herself up to her husband, which she could not retract."
This position, that a husband cannot be guilty of rape on his wife, was first suggested by the 18th century English judge Sir Mathew Hale, and subsequently became so entrenched that it found its way into the IPC as well.
Under this concept, John argued, a married woman was "either incapable of giving her consent, or her consent did not matter. The woman was treated as property, as chattel."
She then showed how the concept was ended in England by the courts (not the legislature), in the landmark R vs R case there in 1991, reading from the House of Lords' judgment:
"Hale's proposition involves that by marriage a wife gives her irrevocable consent to sexual intercourse with her husband under all circumstances and irrespective of the state of her health or how she happens to be feeling at the time. In modern times any reasonable person must regard that conception as quite unacceptable.”
Crucially, in its decision, the House of Lords (at that time, their equivalent of our Supreme Court) had noted that this would not amount to the creation of a new offence, agreeing with the Court of Appeal (the English equivalent of our High Courts) that:
"This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it."
One of the objections to the deletion of the marital rape exception in Section 375, voiced not only by men's rights groups and the Delhi government but one of the judges on the high court bench, is that this creates a new criminal offence.
What is Section 375 About?
The petitions in the Delhi High Court, first filed by social and gender equality activist group RIT Foundation, argue that the marital rape exception violates Article 14 (right to equal treatment of law) and Article 21 (right to life including privacy and dignity) of the Constitution.
Following the main arguments by the petitioners, intervening men's rights groups and the Delhi Government, the high court bench of Justices Rajiv Shakdher and C Hari Shankar heard from senior advocate Rajshekhar Rao as amicus on the constitutional law issues. Rebecca John was asked to assist the court on issues of criminal law.
The court asked her to address several key questions during her submissions, including on the nature of the offence of rape, which is important to understand what would be the legal effect of striking down the exception.
"If I was to deconstruct this section, the definition of rape has two components: descriptive acts and circumstances. The descriptive acts on their own do not constitute rape," John explained. "They have to be accompanied by the seven circumstances or conditions" ie that the act is against a woman's will or without her consent, or against a minor, and so on.
"Central to 375 and for the descriptive acts to become an offence, is the issue of consent," she argued, noting that this is the only provision in the IPC where a woman's consent was crucial to something being an offence.
She pointed out that Section 497 of the IPC, which punished adultery, only dealt with consent of the husband, and that this was therefore struck down by the Supreme Court in the Joseph Shine case back in 2018.
"Therefore there is a need to understand this provision from the point of view of the woman," she added.
This appears to address one of the points raised multiple times during previous hearings by Justice Hari Shankar, that the arguments against the marital rape exception only looked at the offence of rape in Section 375 from the point of view of the woman, rather than as an act between two parties.
John was unable to conclude her submissions, and will resume on Thursday after 3 pm.
Having taken some time to go into how exceptions work in criminal law, she is expected to explain in more detail why striking down the exception would not lead to creation of a new offence and also explain what recourse a wife has against a husband in criminal law as it currently stands.
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