'Difference of opinion' can't make marital rape exception, NGO tells court

To say that all sexual relationships whether marital or non-marital stand on the same footing "militates common sense" and a mere "difference of opinion" on this aspect can not make the marital rape exception under the Indian Penal Code (IPC) unconstitutional, Delhi High Court was told on Thursday by NGO Men Welfare Trust.

The NGO, which is opposing the batch of petitions seeking criminalisation of marital rape, argued before a bench headed by Justice Rajiv Shakdher that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.

Lawyer J Sai Deepak, representing the NGO, contended that marriage is treated differently in several provisions of criminal law and the "blinkered approach" of viewing the issue of sexual intercourse between a husband and wife only from the perspective of "consent", in the absence of the context of the marital setting, is incorrect.

"Rape between two rank strangers (on one hand) and institution of marriage and other relationship having trappings of a marriage within the meaning of a domestic relationship in the Domestic Violence Act (on the other), cannot be the same. That is the intelligible differentia," he submitted before the bench which also comprised Justice C Hari Shankar.

The counsel clarified the NGO was not against the recognition of "spousal sexual violence" but sought "special treatment" to protect the institution of marriage and the children in order to avoid the "deleterious impact" of the usage of the word " rape".

"Consent five minutes before and five minutes after marriage, what difference does it? Well, maintenance, obligations come into the picture. It is a milestone... There are countervailing rights from conjugal rights to whatnot," the lawyer explained as he asserted that the issue of criminalisation of marital rape was of "policy" and whose social aspect ought to be considered. "Distinction or difference of opinion does not rise to the level of unconstitutionality. So for someone to say 'no, whether it is a marital relationship and non-marital relationship, independent of context, consent is consent and therefore, the setting does not matter and impactions don't matter, is one point of view. The other is 'sorry, these are two different circumstances and one is an institution that has been around for several millennia'," he argued.

The lawyer stated that in case of sexual abuse in a marriage, a "basket of remedies" is already available in law, which is different on account of the difference in relationship and context, and their alleged "inadequacy" cannot be a ground to strike down the exception.

He added that even in other jurisdictions, spousal sexual violence is treated as an offence separate from rape.

"A specific distinction has been made between marital and marriage like relationships on one hand and non-marital relations (on the other). To say that all of them are the same, I would argue that it militates common sense," he said.

"Act plus environment or context is rape… Consent and context cannot be separated. Consent and context/relationship are central to the question. It is the issue at the heart of this debate," the counsel stated.

The court is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.

The petitioners have challenged the constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

The lawyer submitted that while the criminal laws, including the Indian Penal Code which has a specific chapter to deal with offences about marriage, treat marriage as a separate class and the intent of the legislature is reconciliation and the interest of children.

"A marriage creates an ecosystem. And therefore, laws are meant to try and protect the integrity of the ecosystem as much as possible. I'm not making a submission that the ecosystem must be protected at one particular expense of one particular individual's dignity. I'm saying there are safeguards,"  he said.

It was also contended that the issue of criminalisation of marital rape fell within the domain of the legislature and the court cannot create a new offence by striking down the exception.

"You may believe that individual is the whole and soul of the existence and others may believe that the family unit must also be protected. That's a difference of opinion. You've not been able to convince the legislature, you can't come to the court and hope to convince the legislature through the judiciary to take one particular point of view," the lawyer submitted.

It was further submitted that if the exception granted to husbands is struck down, it would create an anomaly where a former husband who has forced intercourse is "better placed" by virtue of section 376B IPC which prescribes a maximum of 7 years of punishment as opposed to 10 years in case of section 375 IPC.

He also emphasised the need for an enhanced evidentiary standard in cases concerning offences that take place in the privacy of the parties' homes