In the whole marital rape debate, one important argument was getting missed and that comes from our constitution. Thankfully the men’s side lawyer amazing Advct. J Sai Deepak has raised that point. It is important that we understand the point and hope the High Court sticks to the limits set by our constitution while giving any order in this matter. However, before we get into that important constitutional point, we need to understand some other basic points.
Men’s Rights Perspective Vs Feminists’ Perspective
The men’s groups who are party to this PIL have been raising the point that the offence of Marital Rape is already recognized in the IPC section 498a and also in DV Act. But the feminists wanted to remove the exception of 375 (2) that says, a forceful sex (or sex without the consent of wife) is kept outside the purview of the offence called – ‘rape’.
The petitioners’ lawyers and the judges in the bench many times categorically mentioned that the exception in IPC 375 (2) discriminates against married women as they are treated separately than the unmarried women. We found judges mentioning that when even a prostitute can say, ‘no’ to forced sex and can call out the sexual interaction as ‘rape’, why the married women do not get the ‘equality’ to say ‘no’ within a marital relationship. One point that was missed in this argument though was that marriage itself is an intelligible differentia in this matter. Also, even though the husband is not called a ‘rapist’ today but he is still booked for the crime. We can understand that in this whole argument of ‘equality’ the consent from the husband is totally absent largely due to biased interpretation of our constitution by our judiciary.
Rape – Equals Vs Unequals
Advocates often give the reasoning to counter men’s rights argument is – “equals can’t be treated unequally and unequals can’t be treated equally”. The concept is like this, if you and I are socially existing in different paradigms (or if there is a perceived bias by the judiciary) then the constitution can’t treat us equally because that is injustice. Given the point, I wonder why do judges themselves get better facilities and security than common men like us? Well, since milords themselves make rules and give judgments that they are right, they justify this extreme bias as their ‘right’. So, such arguments are created by the legal fraternity to satisfy their ego and bolster their position while controlling the herd of common man. If you really think through, you will understand that no society can sustain like this as these arguments will keep coming.
This point also tells us, if unequals can’t be treated equally, then why is a husband-wife sexual relationship looked through the same lens of a woman-stranger sexual interaction? Since these women are unequals among themselves, how can they be treated the same way? So, we understand the leftist biased judiciary thinks in a skewed manner and uses such arguments in their favour only.
Marital Rape And Constitution
Now we need to understand what the constitution says regarding Marital Rape. The clear exception given in IPC 375 (2) says it all. The constitution makers didn’t want to call ‘Marital Rape’ under the purview of ‘Rape’. Or in other words, the constitution doesn’t want to call Husbands “the rapists of their wife”. The specific mention of this exception under IPC 375 (2) expresses this in no uncertain terms.
IPC 376B, (the section that provides for the punishment for rape) also corroborates this exception. That is why this section specifically talks about ‘Sexual Intercourse by a husband with his wife during separation” and not during a marital relationship. So, our constitution not only keeps sex in marriage outside ‘rape’ in IPC 375 (2) while defining ‘rape’ but also keeps it out while defining the punishment. Since, this is confirmed twice, it can be said without any doubt that the feminist perception of ‘rape’ is not constitutionally valid.
Moreover, CrPC 198B specifically says “No Court shall take cognizance of an offence punishable under section 376B of the Indian Penal Code (45 of 1860) where the persons are in a marital relationship”. So, this is confirmed a third time in our criminal procedure that when the wife is in a marital relationship, the offence of rape by the husband is not recognized as ‘rape’. But we need to understand that it is still recognized under a criminal section 498a.
Marital Rape – Widening A Crime
So, the moot point in the marital rape PIL is to call this offence as ‘rape’ which is currently not categorized under the crime head. That is, if the exception of IPC 375 (2) is removed, then the scope of the crime called ‘rape’ is widened or in other words – a ‘new crime is created’.
Now the question is, simply because a petitioner thinks that there needs to be new crime created in India (called Marital Rape), do we need to create a new crime? What does the constitution say in this matter? Can a court order the removal of the exception or can a court remove the exception itself?
The Doctrine of Separation of Powers
The main point that we need to understand here is again the constitution is very clear in this matter. The power to legislate a new provision or to create a crime or to abolish one, lies solely with the legislature. That is the parliament. There is a due parliament process that needs to be followed for creating (or abolishing) a law. A court can probably share their opinion (only) but the legislature should have the sole right to decide on the matter based on current social position.
We can understand here that the legislature too can’t decide on such sensitive matters in a hurry. They need to discuss with different social and legal stakeholders before they can enact any law or remove any provision.
This argument was very well brought out by Advct. J Sai Deepak in the court with relevant judgments. If the Delhi High Court remains within the constitutional limits, then they should refrain from overstepping their powers. Otherwise, they will be acting as dictators and should not be listened to (and possibly punished).
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