Highlights of Hon’ble Mr. Rajiv Sakhder Justice’s opinion in split decision of RIT Foundation versus Union of India (11/05/22)
- The classification is unreasonable and manifestly arbitrary. A married woman will not be considered a victim but an unmarried girl or a young girl will be considered to be a victim. Why is this differentiation done among ladies?
- A prior sexual relationship is regarded as a reasonable defense because consent is assumed. But in the case of a married woman, it is not even put to test. Even a sex worker has been invested with the power to say no but not a married woman.
- In a gang rape involving the husband the co-accused will be held liable for rape but the husband will not be liable.
- Marital rape exception with one stroke deprives one-half of the population from the equal protection of the law. Para 137
- Just because there are conjugal expectations of the husband it does not mean that the husband has the unfettered right to have sexual intercourse with the wife without her consent. Para 146
- Mutual respect and respecting each other’s autonomy lies at the very foundational core of any familial structure and if that mutual respect is lost then the familial structure will fall down. Therefore non-consensual intercourse should be considered rape and the husband should be punished.
- The apprehension expressed that there will be a delouse of false cases against the offending husbands doesn’t appear to be correct and if the National Family Health Survey’s data is taken into consideration it establishes that 9.9 out of 10 cases of sexual assault in India go unreported thus the contention that because there is a possibility of false cases being lodged and therefore the court should refrain from striking down MRE even if it is unconstitutional is in my view a contention which is completely unmerited. Para 151
- As regards the submission that prosecution of the offending husband for the offense of rape would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape occurred within what some would refer to as sacrosanct space. The distinction between private and public space has no relevance when the rights of women victims are infringed. When the woman has been subjected to rape by her husband then the private space doctrine will not apply.
- In my view, the submission that if one were to strike down Marital Rape Exception it would create a new offense is misconceived for the following reasons:
- The offense of rape is already defined in the substantive part of Section 375. We are not creating a new offense we are just putting back what was kept outside the purview of rape. We are declaring what is unconstitutional as unconstitutional. We are extending the scope of rape by including the offending husband also because Exception II of Section 376 is without any rationale.
- New offense would have been created only when the essential ingredients would have changed.
- Rape law revolves around the nature of act/omission and it doesn’t revolve around who is the offender. Under IPC also, offenses are act/omission centric and in most situations, it is neutral to who the perpetrator of the crime is. Relationship enters the fray and doesn’t dilute the fundamental premise on which penal laws are pivoted which is that they punish the act committed or its omission which is made punishable irrespective of the relationship between offender and victim.
