Introduction

A 2-judge bench of the Delhi High Court was split on the question of the constitutionality of the marital rape exception (hereinafter also referred to as the MRE) embedded in Exception 2 to Section 375 of the Indian Penal Code (“IPC”), which reads ‘Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’.  Earlier in Independent Thought, another 2-judge Bench of the Apex Court had read down Exception 2 to replace the phrase ‘under fifteen years of age’ with ‘under eighteen years of age’.

In the present case, Justice Harishankar, who ruled in favour of the constitutional validity of the MRE, disagreed with his fellow judge Justice Rajiv Shakdher primarily, among other points, on – ‘whether the MRE clause forms an integral part of the definition of the offence of rape under Section 375 or acts as an immunity clause outside the main definition?’. Now, if the MRE is to be treated as a part of the main ingredients of the definition of rape, striking it down will be equivalent to amending ‘what constitutes rape?’. Further, in that case, a judicial interference that results in changing the very definition of rape will result in the creation of a new offence. This will amount to filling a legislative gap, since the IPC is clear on what constitutes rape and what does not. This was the position taken by Justice Harishankar as well.

On the contrary, Justice Shakdher sees the MRE as an immunity clause outside the main definition of rape and holds that striking it down does not result in the creation of another offence, hence, not resulting in the creation of a judicial legislation. He finds that striking down the exception is merely extending Section 375 to husbands and that it is a legitimate judicial tool to severe what is unconstitutional while retaining the lawful.

The issue, effectively, tells us whether or not courts have the power to make the MRE inapplicable, and is, therefore, of great significance. While unpacking the aforementioned question, I employ textual analysis of provision-specific exceptions present in the IPC provisions to argue that Justice Harishankar’s proposition is based on erroneous and flawed reasoning.

Note: There is already a related matter pending before the Supreme Court against a judgment of the Karnataka High Court where the High Court had refused to quash a marital rape case. On 10 May, 2022 (a day before the Delhi High Court’s judgment), the Supreme Court issued a notice to hear the arguments in July, however, refused to stay the Karnataka High Court’s judgment. The matter is expected to come up in the third week of July.

Textual Analysis

Justice Harishankar treats the exception as a part of the primary ingredients of the offence of rape and not as an immunity clause which comes into operation once the offence has been defined. Throughout his judgment, he has offered this treatment to the MRE. It becomes explicitly clear in para 203, where he writes that “the stipulation, contained in the impugned Exception is one of the ingredients of the offence of ‘rape’. This approach is, however, wrongly founded and based on an erroneous understanding of how special exceptions (provision-specific exceptions) work in the IPC.

Justice Harishankar argues that ‘just as every incident of taking of the life by one, of another, is not murder, every incident of non-consensual sex of a man with a woman is not rape’ (see para 104 of his judgment). This analogy is deeply flawed. The exceptions to ‘every incident of killing is not murder’ are not based solely on the identity of the offender or his relationship with the victim but on the premise that the exempted acts mitigate the fault elements (mens rea) to a certain extent. Accordingly, Section 300 enlists 5 exceptions that mitigate the fault elements to an extent that in those circumstances, culpable homicide does not amount to murder. The Indian Penal Code puts in place various factors (in the form of exceptions) to determine the extent to which fault elements have been mitigated in a particular case.

Example 1: Exception 1 to Section 300: Grave and sudden provocation, which, as explained in BD Khunte v. Union of India, is said to occur when ‘judgment and reason take leave of the offender and violent passion takes over’. Here, the offender is not in a position to make a reasoned decision and is incapable of understanding the true consequences of his offence.

Example 2: Let’s take Exception a(i) to Section 292 ‘Sale etc of obscene books etc’. This exception states that if the publication is proved for the ‘public good’ on the ground it is in ‘the interest of science, literature, art or learning or other objects of general concern’, it is not an offence under Section 292.

John Gardner’s words from his piece ‘Fletcher on Offences and Defences’ explains the relationship between the MRE and the main definition clause.

“When the law grants a cancelling permission by creating a justification defence it does not set up a second (permissive) norm that conflicts with the (mandatory) norm created by the law’s specification of the offence…… Across a certain range of cases, the mandatory force of the norm is cancelled. And yet it would be misleading to say that the norm itself is cancelled.”

Applying the above to the present issue, when the MRE exempts a class of offenders, it does not permit/justify the mandatory norm i.e., the offence of rape. It cancels the ‘mandatory force’ of Section 375 for husbands i.e., they cannot be prosecuted for rape, however, it does not cancel the offence (norm) itself. When this justification which cancels the mandatory legal force of Section 375 is found to be unconstitutional, Section 375 regains its mandatory force to prosecute husbands.

Every exception found in the Indian Penal Code strikes on the fault elements of the respective offence in some manner. There are, however, a few exceptions, all of which are of the same kind. Sections 136, 212, 214, 216, and 216A (all are harbouring offences and are hereinafter collectively referred to as ‘relationship-centric provisions’) have an immunity clause to say to the effect that a wife cannot be prosecuted for harbouring her husband. Regardless of such exceptions, which are based entirely on the class of the offender and not because they mitigate fault elements, they cannot be treated at par with the marital rape exception. The relationship-centric provisions are not only crimes committed outside marriage but are also victimless crimes since harbouring in itself does not have any immediate human victim. This is also clear from the fact that these offences (except Section 136) are listed under the Chapter XI Of False Evidence and Offences Against Public Justice. Section 136 ‘harbouring deserter’, though listed in Chapter VII because of its direct relation with offences relating to the ‘Army, Navy, and Air Force’, shares similarity with other relationship-centric provisions listed in Chapter XI.

The Respondents had referred to the relationship-centric provisions to argue in favour of the retention of the marital rape exception. Justice Rajiv Shakdher, agreeing with the counter-arguments put forth by the petitioners and Sr Adv Rebecca John, rejected this argument on the ground that the above-mentioned relationship-centric provisions, unlike marital rape, deal with offences committed outside marriage (see para 142 of Justice Shakdher‘s judgment).

‘Judicial Legislation?’

Justice Harishankar’s concern (see para 198 of his judgment) that striking down the MRE would make Section 376 applicable to husbands and thus, could be ‘worse than…judicial legislation’ is ill-founded. As also argued by Gautam Bhatia, the MRE does not state that sexual assault within marriage is not an offence. It rather creates a class of offenders purely based on their relationship with the victim and thereupon, treats such offenders differently, i.e., sexual assault by such offenders cannot legally be treated as rape under Section 375 and therefore, by extension, cannot ‘legally’ be punished under Section 376. When this classification of offenders is found to be unconstitutional, it takes away the immunity. In simpler terms, it conveys that there is no reason why sexual assault within marriage cannot be an offence under Section 375 (once the main ingredients have been met). The argument, therefore, flows from Section 375 to Section 376: it cannot run backwards to render Section 375 inapplicable for husbands.

Concluding Remarks

When the House of Lords struck down the marital rape exception in R v. R, the five Lords agreed with Lord Lane of the Court of Appeal (Criminal Division) in saying that striking down did not create a new offence but merely removed ‘a common law fiction which has become anachronistic and offensive’. That gives more reasons to agree with John Gardner’s views on ‘mandatory norm and permissive norm’, as explained above.  The textual analysis provides better clarity on how special exceptions work. It further supports the argument that striking down the marital rape exception will not create a new offence. All that the MRE does is create immunity entirely on the basis of the relationship of the offender with the victim and unlike other special exceptions, not by virtue of mitigating the fault elements of the offence. Since the MRE only provides immunity and does not form a part of the main definition, striking it down will not be considered an interference with the ingredients of the offence of rape and will, thus, not amount to the creation of a new offence.

Ashwani Kumar Singh is an alumnus of Gujarat National Law University and the founder of Criminal Law Research and Review. His interests include Public Law, Comparative Constitutional Law, and Criminal Law & Justice.