Justice C Hari Shankar of the Delhi High Court on Wednesday said the voice of the legislature is the voice of the people and if the petitioners feel that a husband forcing his wife to have sex against her will should amount to rape, they should go to Parliament.
He refused to consider unconstitutional the exception to the law that protects husbands from prosecution for non-consensual sexual intercourse with their wives.
He argued that the Court could not classify acts that the legislature did not consciously choose to designate as certain crimes.
“Where the legislature, in choosing to do so, does not act in such a way as to detract from the Constitution, we shall retract it. In his 200-page ruling, Justice Shankar said any further incursion by us into this contested area would share in the character of judicial enactment, which is strictly prohibited by law.”
The case of criminalizing marital rape witnessed a separate ruling from the Supreme Court Chamber, where a judge preferred to drop the exception in the law that gives husbands protection from prosecution for having sex with their wives without their consent. Others dismissed it as unconstitutional.
However, both judges on the bench agreed with each other to give testimony of leave to appeal to the Supreme Court on this matter as it involved substantial legal issues that required a decision of the Supreme Court.
While Judge Rajiv Shakir, who presided over the bench, preferred to drop the marital rape exception and said it would be tragic if the married woman’s call for justice was not heard even after 162 years of enactment of the Indian Penal Code, Judge Shankar said. The exception under the Rape Act was not unconstitutional and was based on a clear differentiation which had a rational relationship to the subject matter of the exception as well as Section 375 (the offense of rape) of the Indian Penal Code (IPC) itself.
The petitioners challenged the constitutionality of the marital rape exception under Article 375 of the Islamic Penal Code on the grounds that it discriminates against married women who are sexually abused by their husbands.
Under the exception in Article 375 of the Iraqi Penal Code, sexual intercourse or sexual acts between a man and his wife, the wife who is not a minor, does not constitute rape.
Judge Schenker said in his ruling: “If the petitioners feel that the husband’s compelling or even forcing his wife to have sex with him, against her will or her consent, should amount to ‘rape’, Section 375 should be appealed, or that the other provisions applicable in Civil and criminal law is insufficient to deal with such a situation, they will have to take up this issue in Parliament, and not in court.” He said that if the legislature is satisfied with their case, the petitioners’ grievances may be satisfied.
“Parliament is empowered to legislate and make a new law for this purpose. Likewise, Parliament may also consider it expedient to get rid of the contested exception. However, we cannot do so, unless the challenged exception is constitutionally weak. This, in the My considered opinion, it’s not.”
He said that given the nature of the matrimonial institution in the legal social milieu of the country, if the legislator were of the opinion that in order to preserve the matrimonial institution the exception should be retained, the Court would not be in a position to strike out the exception unless it was asserted that the view of the legislature was incorrect.
“However, we cannot do so, for it would amount to substituting our value judgment for the value judgment of the legislature, which, in a democracy, is undoubtedly entitled to primacy, as the voice of the legislature, both classically and constitutionally, said Judge Shenkar. .
He argued that the court could not substitute its opinion for that of the legislature and decide unequivocally that a husband’s treatment of his wife for non-consensual sex would not jeopardize or threaten the marital institution.
“We do not have the capabilities or the resources to make a comprehensive study of the matter, nor can we legitimately do so. The consideration and interest of the legislature is legitimate. Legislation must be upheld.”
He also said that the legislature, under its command, has a vast arsenal of state resources and legislation is not an overnight practice, at least when it comes to the decision to define an act as a crime.
“Therefore, if the legislator, after interaction with stakeholders and after informed deliberation and discussion, forms the opinion that introducing the concept of ‘rape’ into the marital sphere might jeopardize the institution of marriage, then this court, in the case of arguments from counsel, however talented, would be , in my opinion, is wholly ineligible to hold otherwise.”
The court ruling came on PILs made by the NGOs RIT Foundation, All India Women’s Democratic Association, and a man and a woman seeking to repeal the exception granted to husbands under the Indian Rape Act.
A non-governmental organisation, the Men Welfare Trust (MWT) has argued before the Supreme Court that sexual contact between husband and wife cannot be treated on an equal footing with non-marital relationships because the issue of consent cannot be separated from the context of marriage.
(Except for the headline, this story has not been edited by the NDTV crew and is published from a syndicated feed.)