A Single Judge of Karnataka High Court has effectively declared 'marital rape' an offence in India. This, while a Division Bench of Delhi High Court has reserved its judgement on the issue after a marathon hearing.

A petition was filed before the Karnataka High Court by a husband seeking to quash the criminal proceedings initiated against him by his wife, inter alia, for an offence under Section 376 of IPC.

Exception 2 to Section 375 (which defines rape) states that "sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape."

Though the FIR mentioned Section 377 IPC (unnatural intercourse), it was replaced with Section 376 in the charge sheet. The husband then filed an application for deleting the charge under Section 376, which was dismissed by the trial court, prompting him to approach the High Court.

The High Court framed the question, "Whether cognizance being taken against the petitioner-husband for offence punishable under Section 376 of IPC is tenable in law?"

To answer that question, the Court traces the history of Section 375, including the 2013 amendment to the provision. The Court then holds that Exception 2 to Section 375 is violative of Article 14 since it discriminates between a woman who is not a wife and the wife, and also between a man who is not the husband and the husband.

The Court does not go into the well-settled tests for determination of violation of Article 14, including the question of the reasonableness of classification and the nexus with the object sought to be achieved by classification.

Instead, the Court lists out the Articles of the Constitution for the protection of women, offences in the IPC that can only be committed against women and enactments intended to protect women, to hold that "rights of women, protection of women and their equal status to that of a man without exception" emerge from them.

The Court then holds, "But, when it comes to Section 375 of IPC the exception springs. In my considered view, the expression is not progressive but regressive, wherein a woman is treated as a subordinate to the husband, which concept abhors equality."

The Court also holds that if a "man who is well acquainted with a woman" can commit rape, the husband performing "very same acts" cannot be exempted. "A man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman "wife" ", Court says.

After mentioning the brutality of acts of the husband in the case, the Court holds, "In the teeth of the facts, as narrated in the complaint, in my considered view, no fault can be found with the learned Sessions Judge taking cognizance of the offences punishable under Section 376 of IPC and framing a charge to that effect."

"The exemption of the husband on committal of such assault/rape, in the peculiar facts and circumstances of this case, cannot be absolute, as no exemption in law can be so absolute that it becomes a license for commission of crime against society", the Court holds.

No Exemption Is Absolute

An exemption to a penal provision limits the acts that are being criminalized by the provision. The legislature expressly decriminalises an act through an exemption to a penal provision. The declaration that no exemption in law can be absolute, is not based on any known principle of interpretation of statutes.

The effect of the declaration of law, based on which the Judge has held that the husband can be prosecuted for the rape of his wife, is to leave criminal law completely uncertain and ambiguous.

As per the judgment, Courts will be vested with discretion to decide what law will be applicable to an accused. This is in violation of Article 20(1) of the Constitution of India. Article 20(1) guards against uncertainty about the criminality of an action.

Reading Down of the Exemption?

Can what has been done by the Judge be considered as an application of the principle of 'reading down'? The answer is 'NO'.

Reading down of a statutory provision is resorted to for saving the provision from being struck down as unconstitutional. The Court reads down or recasts a provision so that it becomes intra vires the Constitution. The occasion to read down a provision will arise only when the provision is challenged as unconstitutional. Every legislation has a presumption of constitutionality, which has to be rebutted by mounting a challenge. While reading down a provision, the Court is essentially modifying the legislation and it cannot be done without hearing the government concerned.

The Court has effectively read down Exemption 2 to Section 375 by making it non-applicable to cases of brutal rape. The Court has done so on a petition by a person who was seeking protection of the said Exemption. Even though the Central Government was heard through the ASG, it was on a different question relating to the POSCO Act. The Court even records in the order while dealing with that question, "...there is nothing other than that the Union Government needs to answer in the lis".

Moreover, it is trite law that a provision cannot be 'read down' when its words are explicitly clear and unambiguous. It is no one's case that Exemption 2 has any ambiguity. The power to amend a statute is not vested with the judiciary. Hence, the judiciary cannot, in the name of reading down, hold that a provision means the opposite of what it clearly says. If the intention of the legislation is manifestly clear, the Court, if it does not strike down the provision, has to implement it.

Permissible Rape & Immpermissible Rape?

The Karnataka High Court seems to suggest that its decision to criminalize marital non-consensual sex is based on the degree of brutality of the non-consensual sex by a husband with his wife. The Court uses the words "peculiar facts" seven times in the judgments.

While the perceived brutality of a crime is taken into account when deciding the quantum of sentence to be awarded to a convict, it can't be a factor to decide the criminality of an act. Whereas the legislature has deliberately and expressly kept out non-consensual sex between spouses outside the preview of the definition of rape, the Karnataka High Court has criminalized some, but not all non-consensual sex as rape.

If non-consensual intercourse between husband and wife is to be criminalised as rape, it is unjust to deny relief to any wife by holding that the rape was not "brutal enough" to be criminal. The net effect of such categorisation is to trivialize the trauma of rape, whether inside or outside of marriage.

More importantly, the Judge who started by saying that a husband performing the "very same acts" as a third party rapist cannot be exempted and that "man is a man; an act is an act; rape is a rape", cites brutality of rape as the criterion to uphold charge under Section 376.

The Delhi High Court

Before the Division Bench of the Delhi High Court that was hearing a batch of petitions seeking criminalization of marital rape, involving challenge to Exception 2 to Section 375, the Central Government submitted that it is involved in a consultative process that may result in amending the said provision.

It told the Bench that, "..considering the social impact involved, the intimate family relations being the subject matter and this Hon'ble Court not having the privilege of having been fully familiarized with ground realities prevailing in different parts of Society of this large, populous and diverse country, taking a decision merely based on the arguments of a few lawyers may not serve the ends of justice".

The Center submitted that the matter "may not be treated merely as a question concerning constitutional validity of a statutory provision as the subject matter has and will have very far reaching socio-legal implications in the country" and requested for deferring the hearing for a stipulated timeline, within which the Central Government would conduct a consultative process.

"We cannot let the matter hang like this", the Bench responded. The Center had submitted that the Exemption in existence since the inception i.e. 1860 and that the cases are pending since the year 2015.

The Bench reserved the batch of cases for judgment, without awaiting the Center's stand on the issue.

The Race

After the Delhi High Court reserved its judgement on February, 21, a Division Bench of the Gujarat High Court adjourned a challenge to the Exemption to Section 375 to await the decision of the Delhi High Court. One of the Judges of the Division Bench had in 2018 quashed an FIR against a husband under Section 376, after expressing his view in detail about the need to criminalize marital rape.

While the Center is saying that the issue is not merely a question of constitutionality of a provision, but one having "far-reaching socio-legal implications in the country", the Single Judge of the Karnataka High Court has effectively struck down the provision, without there being a challenge through a properly constituted proceeding, without hearing the central government and without considering the settled principles of testing vires of a provision.

The Writ Petition before the Karnataka High Court was filed in the year 2018.

It appears that the Court was in such a hurry to pronounce on the 'marital rape' issue before the Delhi High Court does, that it does not even mask the identity of the child victim of the alleged abuse. Names of both the mother and child victims are mentioned in the Judgment. The Court has also rendered findings about the guilt of the husband, which will seriously prejudice his rights in the trial that is yet to commence.

The Certificate

Lawyer Indira Jaising has written a column terming the Judgment a "revolutionary interpretation of the Exception" that "creates an exception to the exception".

"The question sharply posed by the single judge bench of Justice M. Nagaprasanna in this case was this: does a wife give implied consent to sex with brutality?", writes Indira Jaising. However, no such question was ever posed by the Judge. The Judgment does not discuss the question of "implied consent" at all. The only reference to "implied consent" in the Judgment is found in a quotation from the report of Justice Verma Committee.

"The law declared here must therefore mean that a wife does not give "implied consent" to brutal sex by the husband", she says as she supplements reason not found in the Judgment. She says that the "court interprets the exemption not to apply to brutality in sex" and that the "ruling can be interpreted to mean" that the implied consent is withdrawn when sex degenerates into brutality.

Thus, after supplying reason and interpreting an 'interpretation', she terms the Judgment an "act of judicial statesmanship".

As per the dictionary, a statesman is an experienced politician. The Judges of the Gujarat High Court, who quashed the offence against a husband under Section 376 after expressing the need to criminalize marital rape and who deferred pronouncement on the issue till the Delhi High Court does, will not get the certificate of being judicial statesmen. Judges who do justice in accordance with law will not get the certificate of being judicial statesmen.

If judicial statesmanship involves deciding cases based on emotions and feelings rather than law, Judges must be wary of certificates of judicial statesmanship.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]