Allegation Of Rape By Husband Is Anathema To IPC, Directly Contrary To Impugned Exception – Justice C. Hari Shankar's Opinion

Justice Rajiv Shakdher has struck down the impugned provisions. The declaration will operate only from the date of the decision, the Judge held. He granted the certificate of leave to appeal before the Supreme Court.

Justice C Hari Shankar however, declined the challenge but granted leave to appeal.

Justice C Hari Shankar's Opinion

• Impugned Exception

The impugned Exception to Section 375 IPC states – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape.

Justice Shankar noted that the words of the impugned Exception are plain, admit of no ambiguity, and observed –

"The impugned Exception is worded in absolute terms though, statutorily, it finds place as an Exception to Section 375. It merely states that sexual intercourse, or sexual acts committed by a man with his wife are not rape. In effect, therefore, the impugned Exception keeps rape, and the taint of rape, away from the marital sphere. It immunizes, in effect, the marital relationship from the slur of rape, and the disgrace that comes with it, whatever be the nature of the sexual activity that takes place within the four corners of the relationship, and irrespective of whether the activity is consensual or non-consensual."

Justice Shankar further opined, "Marriage, unquestionably, does not entitle a husband to coerce his wife into sex, if she is not inclined. The impugned Exception does not, however, either expressly or by necessary implication, confer, on the husband in a marriage, an entitlement to insist on sex with his wife, against her willingness or consent. All that it says is that sexual intercourse and sexual acts – which one may, for the purposes of convenience, refer to, generally, as "sex" – by a husband with his wife, is not rape. By extrapolation, it may be inferred that the impugned Exception also excepts, from the scope of "rape", a situation in which the wife is not willing or does not consent. Any further extrapolation, to imply that the provision encourages, or even sanctions or permits, non-consensual sex by a husband with his wife would, in my opinion, would be completely unwarranted."

• Marriage as an Institution

Justice Shekhar noted that the Petitioners have completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equation that exist between a wife and a husband.

"The sexual aspect is but one of the many facets of the relationship between husband and wife, on which the bedrock of their marriage rests. Care, consideration, and an understanding of one other's likes and dislikes, hopes and aspirations, are fundamental to the sustenance of a marriage that is to abide. There can be no comparison, whatsoever, between the relationship between a husband and a wife, with any other relationship between man and woman. It is for this reason that there is an enforceable legal right," the Judge added.

• Marital Relationship

Justice Shekhar noted that in the marital relationship, given its unique character and complexity, the Legislature has, advisedly felt that no allegation of 'rape' has place.

In this context, the Judge further added –

"Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act, aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between and wife and husband, is undeniable. The marital bedroom is inviolable. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of 'rape', in my view, is completely immune to interference."

The Judge also noted that the possibility of the husband being regarded as wife's rapist, if he has, one or more occasion, sex without her consent would, be completely antithetical to the very institution of marriage, both in fact and law, and thus held –

"The daughter born of such an act would, if the petitioner's submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be the child of a rapist because her mother was, on the occasion when she had sex with her father, been unwilling. Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376, were her mother to prosecute. The sequelae, were the submissions of the petitioners to be accepted, are mind boggling."

• Marriage a sociological instrument confers legitimacy to sexual activity between husband and wife

Justice Shekhar further added that that marriage as a sociological instrument confers legitimacy to sexual activity between man and woman.

Further, the Judge held that the expectation of sex of the husband, with his wife is therefore, a legitimate expression, a healthy sexual relationship being integral to the marital bond, and thus observed –

"The law, too, therefore, recognises the legitimacy of the desire of either spouse to have meaningful sexual relations with the other, as not only a civil, but a legal obligation."

"…where the parties are married, the woman has consciously and willingly entered into a relationship with the man in which sex is an integral part. She may not, therefore, as Lord Hale thought, have cleaved unto the man for life, or surrendered her sexual autonomy to the will of the man. She has, nonetheless, by her decision to marry the man, given, to him, the right to expect meaningful conjugal relations with her. If, therefore, the man, in such a situation, requests her, on a particular occasion, to have sex, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage," the Judge added.

• Concept of rape into marital equation

The Judge added that the extent to which, if the concept of rape were to be introduced into marital equation, the institution of marriage, or family would be affected, is not something on which the Court can opine.

"This Court cannot, therefore, substitute its view for that of the legislature, and hold, definitively, that treating nonconsensual sex by a husband with his wife would not imperil, or threaten, the marital institution. Neither do we have the wherewithal, or the resources, to undertake an incursive study into the issue, nor, for that matter, can we legitimately do so. The consideration and the concern of the legislature are legitimate. The legislation must, ergo, be upheld," the Judge noted.

• Constitutionality of Impugned Exception

Justice Shankar held that the constitutionality of the impugned Exception cannot be tested by referring only to the gross acts of the sexual assault such as that which appear to have, unfortunately, visited the Petitioner for the simple reason that the consequence of our striking down the impugned Exception would be that even a single act of nonconsensual sex, or of sex by a husband with his wife without unwillingness, would qualify as "rape".

Additionally, the Judge noted, "Our task, here, is not to pronounce on whether the husband, in acting as he does, commits, or does not commit, an actionable wrong. We may assume, arguendo, that he does. Our task is to adjudicate on whether, in desisting from treating him as a rapist, who has committed "rape" within the meaning of Section 375, punishable under Section 376, the legislature can be said to have acted arbitrarily or unconstitutionally."

• Act of non-consensual sex committed by complete stranger – the difference

Justice Shankar noted that the act of non-consensual sex committed by a complete stranger cannot be equated with an act of non-consensual sex by a husband.

While holding so, the Judge further held –

"An "act" cannot be divorced from its actor. Offences are not committed by insubstantial phantasms. An act of non-consensual sex, as committed by a complete stranger, cannot, therefore, be equated with an act of non-consensual sex by a husband. The extent of outrage felt by the wife, in the two cases, is also distinct and different. It would be artificial to assume that the degree of outrage felt by a wife who is compelled to have sex on a particular occasion with her husband, despite her unwillingness, is the same as the degree of outrage felt by a woman who is ravaged by a stranger against her will."

The Judge also added that there is an intelligible differentia in the two cases. From the point of view of the victim, it would be equally unrealistic to presume that a wife, on whom a husband forces sex, against her will on a particular occasion, would suffer the same degree of violation as a woman who is ravaged by a stranger. From the point of view of the victim, too, there is, therefore, an intelligible differentia.

• Conjugal Rights v. Conjugal Expectation

The Judge in this context held, that the impugned notification does not seek, directly or indirectly, to enforce a non-enforceable conjugal right, o even a conjugal expectation.

"The existence of such a conjugal expectation, to normal sexual relations, read with the unique relationship of marriage, however, provides an intelligible differentia, having a rational nexus to the object of the impugned Exception, as well as to the object of Section 375 itself. The extent to which a decree for restitution of conjugal rights can extend, or can be enforced is not, therefore, a legitimate consideration, in assessing the constitutionality of the impugned Exception," Justice C. Hari Shankar added.

• Is the impugned Exception Arbitrary?

The Judge noted that Arbitrariness as an abstract concept, cannot, therefore, constitute the basis for striking down a legislative provision as unconstitutional, or is violative of Article 14.

The Judge also held that once there is intelligible differentia, a legal object that the impugned Exception seeks to achieve, and a rational nexus between the differentia and the object, the scope of the enquiry by the Court ends there. It is not open for the Court to examine further, whether the object of the legislation is sufficient to justify the differentia.

Another Perspective

The Judge referred to the impugned Exception and noted that it holds without any caveat or condition attached that, sexual acts and sexual intercourse, by a man with his wife, are not rape. It does not refer to consent or the lack of consent. It does not refer to force, pressure or injury. It refers, plainly and simply, to "sexual acts and sexual intercourse."

In this context, the Judge held –

"The obvious intent of the legislature, in using the omnibus expression "sexual intercourse and sexual acts", without referring to presence, or absence, of consent, is to exclude, from the marital sphere, any allegation of rape. Expressed otherwise, what the legislature intends, quite clearly, is that an allegation of rape should find no place in a relationship of marriage. The taint of rape, in other words, according to the legislature, should never discolour a marital relationship between man and woman."

To this, the Judge questioned whether it is unconstitutional? Is it violative of Article 14?

In this context, the Judged noted that the impugned Exception applies to marriages that are subsisting and surviving and where both the man and woman are living together and cohabiting, and thus observed –

"…if the legislature feels that an allegation of rape – and, consequently, the chance of the husband being called a rapist – should find no place even if, on one occasion or the other, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally?"

The Judge thus held that the impugned Exception far from being unconstitutional serves a laudatory purpose, and is in pre-eminent public interest aimed at preservation of the marital institution, on which the entire bedrock of society rests.

Further, the Judge also opined that a man who has non-consensual, or even forcible, sex with his wife, is not prosecuted for it is precise because the offence is not rape, statutorily. One cannot be prosecuted for what is not an offence.

"The impugned Exception 2 to Section 375 states that sexual intercourse and sexual acts by a husband with his wife are not rape. Its validity cannot be tested, therefore, by presuming that the act is rape, which appears to be the fundamental premise on which learned Counsel for the petitioners substantially rest their case," the Judge held.

Thus, the Judge held that it is completely illogical to contend that the impugned Exception defeats the object of the main part of Section 375, which seeks to criminalize rape for the simple reason that the impugned Exception states that the acts envisaged therein are not rape.

• Can it be said the effect of the impugned Exception is to nullify, abrogate, or even compromise the right of wife to refuse to consent to sex?

The Judge while answering this observed that it is plainly clear that there is nothing in the impugned Exception that obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent or want of consent.

"The impugned Exception does not encourage any husband to force sex on his wife, unmindful of her consent. If some husbands do feel so encouraged, that would be attributable solely to their own perverse predilections, and is certainly not the direct and inevitable effect of operation of the impugned Exception," the Judge held.

The Judge also noted that the Petitioner have themselves contended that unjustified denial of sex by either spouse within a marital relationship amounts to cruelty, and, also, the existence, in each spouse, of a legitimate conjugal expectation of meaningful sexual relations with the other is also acknowledged and admitted.

In this context, the Judge held –

"The importance of these obligations and expectations are completely undermined, in the submissions advanced by learned Counsel for the petitioners. These obligations, or expectations, do not, needless to say, entitle the husband to coerce or force his wife into sex, against her, or his, will, which learned Counsel for the petitioners erroneously seem to assume to be the implication of the impugned Exception. At the same time, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, do constitute a sufficient basis for the legislature to distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it. In view of these several distinguishing features that mark out the relationship between a husband and wife, and its dynamics both within and outside the confines of the bedroom, as sui generis, if the legislature has desired not to characterize husbands as rapists, I completely fail to see how the Court can hold otherwise."

Furthermore, the Judge held, "The impugned Exception retains, intact, the wife's decisional autonomy in the matter. She still has the right to either say no, or, as Ms. Nundy chooses to express it, "a joyful yes". The impugned Exception does not compromise her right, to do so, in any manner. In fact, the impugned Exception does not even come in for application, at that stage. It applies only if, despite the wife's "no", her husband nonetheless compels her to have sex. In such a situation, the impugned Exception, for reasons which are perfectly valid and in sync with Article 14, holds that the husband cannot be convicted for rape."

The Judge also held that there is no fundamental right, for the wife, to have her husband convicted for rape relatable to Article 21, Article 19, or to any other Article in the Constitution.

The Judge opined that the wife if aggrieved, has her remedies criminally under Sections 304B, 306, 377, and 498A of the IPC and Section 3 of the Dowry Prohibition Act, 1961, civilly, by seeking divorce on the ground of cruelty (if it amounts to such), and under the DV Act both civilly and criminally.

"The petitioners' grievance that these statutes do not punish the act of non-consensual sex, by the husband with his wife, as rape, holds no water, simply because the act is not rape," the Judge noted.

The Judge further opined that the impugned Exception does not violate Articles 19, 21, and 14 of the Constitution.

• Creation of New Offence

The Judge while pronouncing a split verdict held that striking down the marital rape exception i.e., exception 2 to Section 375 IPC would result in the creation of a new offence and thus ruled against the challenge.

The Judge observed, "I am of the considered opinion that, apart from all other considerations, and even if it were to be assumed that the impugned Exception does infract any right guaranteed to wives by Part III of the Constitution, the Court would, nonetheless, not be in a position to strike down the impugned Exception, as doing so would result in creation of an offence."

The Judge disagreed with the contention of the Petitioners that while the removal of the impugned Exception may enlarge the class of offenders liable to be prosecuted under Section 375 IPC, it would not create a new offence.

The Petitioners placed heavy reliance on the Independent Thought case to buttress their contention that by striking down the impugned Exception, the Court would not be creating an offence.

In this context, the Judge held that the Supreme Court in Independent Thought case had clarified that the decision is not an authority on the aspect of the constitutionality of the impugned Exemption, in so far as it relates to sex between an adult husband and wife whether directly or by employing the 'inversion test' or any other test.

The Judge also clarified that the impugned Exception does not violate any fundamental right, guaranteed by Part III of the Constitution of India.

While holding that the Court may strike down a provision when found to be unconstitutional, the Judge observed –

"…if a provision is found to be unconstitutional, the Court may strike it down provided, by doing so, it is not creating an offence. If, by its judgement, the Court creates an offence, there is an absolute proscription, even if the provision is otherwise unconstitutional."

The Judge further also held that Judges sitting in Courts cannot on the basis of the arguments of the Counsel, howsoever, persuasive, create offences or pass judgments which would result in an act, otherwise not an offence being rendered an offence.

The Judge also observed that another reason why the Court cannot create an offence is that a Court cannot legislatively stipulate the punishment for the offence. In this context, the Judge held –

"In the present case, for example, there is no stipulated punishment for an act of non-consensual sex, by a husband with his wife, as it is does not amount to 'rape' and, consequently, Section 376 would not apply to it. If the impugned Exception was to be struck down, we would make, ipso facto, the punishments envisaged by Section 376, applicable to such a husband, where the legislature never intended these punishments to apply to him. We, therefore, would be doing something which was never within the contemplation of the legislature, which may be even worse, jurisprudentially, than judicial legislation itself. If the Court is not empowered to prescribe punishments, equally, the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence."

The Judge also held that the Court cannot strike a provision where, by doing so, an offence would come into being, and leave the legislature to think of the appropriate punishment that would visit the offender.

In this regard, Justice C. Hari Shankar asked – What happens to cases that come up in the interregnum?

The Judge additionally observed, "As things stand today, an act of nonconsensual sex, by a husband with his wife, is not rape. Were we to allow these petitions, it would, thereafter, be rape. As things stand today, if a wife lodges an FIR against her husband for having raped her, the husband need not contest the case that would result, or prove his innocence; he may, straightaway, seek recourse to Section 482 of the Cr PC and seek that the FIR be quashed, for the simple reason that, even if the act alleged had been committed by him, it is, statutorily, not rape. Any allegation of rape by a husband of his wife is, therefore, anathema to the IPC, and directly contrary to the impugned Exception."

"Were, however, we to agree with the petitioners, and strike down the impugned Exception and, thereafter, if a wife was to lodge an FIR against her husband for having raped her, Section 482 would, ordinarily, not be available to the husband, who would have to contest the trial and establish his innocence, as the act that he committed would, with the evisceration of the impugned Exception, become an offence of rape. We would, therefore, be designating the act of the husband, vis-à-vis his wife, as rape, where, earlier, it was not," the Judge observed.

Justice Shankar held that it is impossible for the Court to grant the reliefs sought by the Petitioners, as it would result in the creation of an offence, which is completely proscribed in law.

• Outcome

Justice C. Hari Shankar thus rendered the following findings –

• Petitioner's case is premised on a fundamentally erroneous postulate, for which there is no support available either statutory or precedential, that every act of non-consensual sex by any man with any woman is rape.

• The impugned Exception does not violate Article 14 but is based on intelligible differentia having rational nexus with the object both of the impugned Exception as well Section 375 itself.

• The Court cannot substitute its subjective value judgment for the view of the democratically elected Legislature.

The Judge finally held that the challenge to Exception 2 to Section 375 in terms of its constitutional validity cannot sustain and concurred with the decision of Justice Rajiv Shakdher to grant the certificate of leave to appeal to the Supreme Court in the matter as it involves substantial questions of law.

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