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IN THE HIGH COURT OF DELHI
Rajiv Shakdher, C. Hari Shankar, JJ.
RIT Foundation - Appellant
Versus
Union of India - Respondent
W.P.(C) 284 of 2015 & CM Nos. 54525-26 of 2018, W.P.(C) 5858 of 2017 & CM No. 45279 of 2021, W.P.(C) 6024 of 2017 and W.P.(Crl.) 964 of 2017
Decided On : 11-05-2022
JUDGMENT
Rajiv Shakdher, J.
TABLE OF CONTENTS
| Particulars | Page no. |
| Preface | 4 |
| Arguments against striking down the impugned provisions | 8 |
| Arguments advanced for striking down the impugned provisions | 33 |
| Submissions advanced by Amicus Curiae | 62 |
| Analysis and Reasons | 79 |
| I. Brief History of Rape Law | 79 |
| II. Separation of Powers | 89 |
| III. Judicial Restraint | 95 |
| IV. Ambit of Section 375 of IPC | 99 |
| V. In defence of MRE | 105 |
| V(i) Constitutional viability of classification between married and unmarried women in the context of Article 14. | 106 |
| V(ii) Relationship-centric provisions in the IPC | 113 |
| V(iii) A married woman can take recourse to other remedies | 115 |
| V(iv) Conjugal expectation | 117 |
| V(v) Non-consensual sexual intercourse is not labelled as "rape" to save the institution of marriage. | 118 |
| V(vi) Lodgement of false cases | 120 |
| V(vii) Invasion of Private Space | 123 |
| V(viia) Gathering evidentiary material would be difficult | 124 |
| V(viii) New offence | 126 |
| VI. MRE violates Article 21 of the Constitution | 133 |
| VII. MRE violates Articles 15 and 19(1)(a) of the Constitution | 139 |
| VIII. Separated husbands | 140 |
| IX. Presumption of Constitutionality of Pre-Constitutional Statutes | 143 |
| X. Reliance on Decisions of Foreign Courts & International Covenants & Conventions | 146 |
| XI. Parliamentary Committee Reports | 158 |
| XII. Material & Case law Cited on behalf of the Intervenors | 163 |
| XIII. Summing up | 187 |
| Conclusion | 192 |
Preface:
1. What looms before us is Lord Hale's Ghost. Thus, the key question which arises for consideration in these matters is whether or not we should exorcize Hale's Ghost? Hale's formulation was embedded in the doctrine of coverture; a condition which allowed a married woman to sue only through the personality of her husband. Since then, the world has moved on. Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing. In plain words, the poser before the court is: Should a husband be held criminally liable for raping his wife who is not under 18 years of age?
1.1. Before I proceed further, I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. That said, it is incumbent on courts to take decisions concerning complex social issues and not dribble past them, as that is the mandate of the Constitution and, therefore; a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution. Thus, the mea culpa on behalf of the institution is that one way or the other the issue ought to have been laid to rest much earlier.
2. As was evident to us during the hearing that both within the court and outside, people all across have views concerning the issue at hand which vary in their contour and texture depending on which side of the debate they fall on; the legal issue, though, rests in a narrow space.
3. The moot point is (which is a more particularized version of what was stated right at the beginning) whether or not Exception 2 appended to Section 375 of the Indian Penal Code, 1860 [hereafter referred to as `IPC'] should remain on the statute. Having said that, it is the impact and its ripple effect, in law, that one is required to grapple with. Thus, those who support the proposition that Exception 2 to Section 375 of the IPC, which is ubiquitously referred to as Marital Rape Exception [hereafter referred to as `MRE'] should be struck down, broadly, contend that it is an archaic provision which represents the most abhorrent vestiges of colonialism while those who argue that the provision should be retained on the statute, contend that striking down the provision is fraught with the danger of disrupting marital and familial relationships, triggering misuse of law and transgression of the Constitutional pe
