[Marital Rape] Nature of relationship cannot put same offence on different pedestal: Delhi High Court

The Delhi High Court on Tuesday questioned the rationale in discriminating between married and unmarried women when it comes to non-consensual sex and the impact it has on their dignity [RIT Foundation v The Union of India]..The Court asked how a man forcing himself on a woman, without her consent, violates an unmarried woman’s dignity but the same act is presumed to have no impact on a married woman's dignity.The question was posed by Justice Rajiv Shakdher while hearing arguments in a bunch of petitions demanding the criminalisation of marital rape, currently exempted from penal law by way of an exception in Section 375 of the Indian Penal Code (IPC)..Appearing for the Delhi government, advocate Nandita Rao argued that the exception provided in Section 375 does not violate a woman’s right to bodily integrity or her right to say no in or out of the marriage. It is just that if a couple is married, then the complaint will be registered under Sections 377 (unnatural offences), 498A (cruelty to woman by husband/in-laws) and 326 (grievous hurt) of the IPC..The Bench which comprised Justice C Hari Shankar remarked that the nature of the relationship cannot put the offense on a different pedestal.“Imagine a woman going through her menstrual cycle. Partner says I want to have sex today and she says no I can’t, I am not in condition. He then brutalizes her. You are saying he will be charged with other Sections but not 375. That is precisely what we are testing. If for a live-in partner, this is an offense under 375 then why not for the husband? The thrust and rationale is that relationships cannot put the same offense on a different pedestal. The woman remains a woman,” the Court remarked..Earlier, Rao had told the Court that she had a two-fold argument. First, whether the exception is ultra vires the Constitution and secondly, whether striking it down would create a new offence.“There is no dispute that a woman has full right to bodily integrity and a right to say no and just because Section 375 does make this act by a husband a criminal offense does not mean that wife has no right to say no. A wife has a remedy to divorce on the grounds of cruelty. She can also register a complaint under 498A,” Rao submitted."It is humbly submitted that exception to Section 375, while not criminalizing the act of unwilling intercourse with a spouse does not compel a wife to remain with or have sexual intercourse against her will with her husband. She has the remedy of divorce on the grounds of cruelty (under personal law) and she has right to register a criminal case under Section 498A of the IPC," she added. On the issue of creating a new offense, Rao said that the Supreme Court has specifically said that the Courts cannot create a new offence.“The Supreme Court clearly said that we don’t have the power to create a new offense because Courts do not have the machinery of the legislature,” she submitted..The Court said that it would deal with this argument later and the only question before it was that the exception creates a firewall and it will test whether that firewall stands the Constitutional test and judicial review. It added that if it finds any provision unconstitutional, that can be struck down. .Advocate Raghav Awasthi, appearing for the petitioners, also made his submission before the Court on Tuesday. Awasthi cited a judgment of the Supreme Court of the Philippines as well as the fact even Pakistan penalises marital rape. He referred to United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (UN-CEDAW) to which India is a signatory.“My argument is since India is also a signatory to this treaty this should be upheld. I understand that this only has a persuasive value but there are some judgments of the Supreme Court and Delhi High Court as well where it has been laid down that when there is a vacuum in the national legislation, the international treaty obligations can actually fill that vacuum,” he said..The Court has now listed the case for further arguments on Wednesday when other advocates, including those representing the Central government, will make their submissions..Senior Advocate Colin Gonsalves and advocate Karuna Nundy have already made their arguments for the petitioners in the case.On Monday, Nundy had said that striking down the marital rape exemption which is "under-inclusive" does not create another offence. She added that if a wife does not have the right to say no to her husband, then she does not have the right to freely say yes either.“Harm is not dependent on being married or not. This is the man who was supposed to protect me. It is not slapping in public but it is the rape which is most violative of my self,” she argued.Nundy argued that a minuscule proportion of marital rape case are reported and of those, the number of false cases is even smaller.“Married women hesitate to report such incidents even to their lady health visitors. While all criminal justice suffers from ‘false negative’ i.e. acquittal of the guilty and ‘false positives’ or conviction of the innocent, there is no evidence that false cases concerning rape and sexual assault in case where the assaulted and accused have prior sexual relationship are misused more than other criminal laws,” she submitted..[Marital rape] Married parties may have right to expect sexual relationship, unmarried couples do not: Delhi High Court remarks