Marital Rape PIL | Read Written Submissions By Advocate Raj Kapoor For Hridey NGO, & Men Welfare Trust

Kapoor said that non-consensual sex between a husband and wife cannot be labelled as rape and, at worst, it can be called sexual abuse as defined under the Protection of Women from Domestic Violence Act. He quoted,

Husband can be prosecuted under several other section of IPC like 323, 324, 498A, 506, 509 and DV Act, 2005 where cruelty includes physical and sexual abuse. Wife cannot compel the Parliament to prescribe a particular punishment against the husband to satisfy her ego.

The only difference in Section 376 Indian Penal Code and Domestic Violence Act is the quantum of punishment.

Adding further, Kapoor quoted,

If rape is taken in absolute terms by saying that rape is rape then all the rapists must be punished alike. If E 2 is to be struck down then on that logic Section 376B and 376C should also be struck down.

Parliament was not that unwise that one hand, it exempted the husband under E2 and included him under the definition of Relative under Section 376(2)(f) of IPC.

Marriage Not Between Individuals, Also Involves Children

He reiterated his earlier submissions that striking down Exception 2 has the potential to destroy the institution of marriage since a wedding is not only a union between two individuals, but also affects the children as well as the entire family. He said,

It is not correct to argue that sexual act in married relations is individual act and the institution of marriage will not suffer if the Exception 2 is struck down. Supreme Court in its judgment of Sivasankaran v Santhimeenal has held that a marriage is more than a union between two individuals.

Therefore, it is not correct to argue that sexual act in married relations is an individual act and the institution of marriage will not suffer if the Exception is struck down.

Wife Not Equal To Sex Worker

Kapoor also disagreed with the submissions made by the petitioners that even a sex worker has the right to prosecute a man for rape despite the fact that she had taken money to perform a certain act. He said that the two instances are totally different and that the sexual relationship between a married couple cannot be equated with the relationship between a man and a sex worker. He added,

The example of sex worker cited is also wrong. There is no emotional relationship there. It cannot be limited to just one event of consent for sexual relationship. These are totally different concepts.

Hindu Marriage Act 1955 – Endeavour to Protect Institution of Marriage

Kapoor relied on the Hindu Marriage Act 1955 to submit that there is an endeavour to protect the institution of marriage. He said,

A number of provisions under the Hindu Marriage Act would show that an endeavour has been made to protect the institution of marriage. Under Section 13, though provision for divorce is available to either party, it provides that no petition can be filed unless one year has elapsed since the date of marriage.

Even under Section 13B (divorce with mutual consent), a divorce petition cannot be entertained unless it is shown that they have been living separately for a period of one year or more.

Limit on the Powers of Judicial Review

It was further submitted that when parliament has made a classification based on the gravity or intention of an offence, there is a limit on the powers of judicial review. Kapoor said,

Policy making is entrusted with the legislature. It cannot be that one organ (legislature) gives protection to citizens and the other organ (judiciary) takes it away and makes it an offence. It is settled law that what cannot be done directly can also not be done indirectly.

He further said the powers of a High Court under Article 226 cannot be equated with the powers of Supreme Court, which in the cases of Joseph Shine, Navtej Johar and Independent Thought did not create an offence, but merely read down a section of the penal code or decriminalised an offence. Concluding that there are sufficient provisions in favour of the wife, Kapoor said,

All these submissions are equally relevant to sustain 376B of IPC and 198, 198A and 198B of CrPC.