Marital rape hearing: Amicus argues against exception to IPC section 375

“The question we all have to ask ourselves is … can the court and should the court sit by and watch a provision which aids in the possibility of a married woman being dehumanised every day? I am using the expression very carefully… ‘in the possibility’… We all understand it does not happen in every household but we also understand it happens in many households,” said Rao, adding that the mere fact that there are not many reported numbers should not be a reason for the court to not go into a constitutional question of whether the exception violates Article 21 and Article 14.

“Five minutes before the marriage if the act occurs, it is an offence and five minutes after the marriage, if the act occurs, it is not an offence. At the end of the day, the woman does not have recourse to prosecute the man for the act. She has the ability to prosecute him for that act under various other provisions of law but she cannot call it a rape anymore,” contended Rao.

Referring to the rape laws in India, Rao submitted that there is a “subtle statutory distinction and statutory recognition” of the fact that if somebody in a position of trust violates that trust, they deserve to be punished.  “The law places a premium on relationships and a greater responsibility on somebody who has a fiduciary capacity,” he added.

However, Justice Shankar said that the word ‘trust’ and ‘fiduciary’ has been used in the law keeping in mind the fact that the exception is in place under IPC Section 375 (rape). “To say that ‘that will also mean that there is an implicit recognition of the situation which applies in a married couple’s case’ may not be very correct,” observed the judge.

“There is no question of saying that such an act should not be punished. We are concerned with whether this act should be punished as a rape, whether this should be made rape. It is not that the legislature says that this act should not be criminally punished. The legislature has made the act criminally punishable under various statutes but the legislature has taken a decision that this act should not be treated as a rape,” he said further.

The intervenors opposing the petitions argued that striking down the exception would put a husband in a “worse position” when it comes to punishment and that India need not “copy-paste western concepts or trends”.

Men Welfare Trust, an NGO for mens’ rights, submitted that the exception is not a license to commit crime and does not take away the right of a married woman to withdraw her consent.