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In the case(s) challenging the constitutionality of exception 2 to section 375 of the IPC, alleging that it discriminates women who are raped and sexually assaulted by their husbands, intervenor 'Men Welfare Trust' has filed its written submissions after the organisation made oral submissions last month before the Delhi High Court.
Filed through Advocate J Sai Deepak, the written submissions of the Trust has made it amply clear that it has never been opposed to criminalisation of spousal sexual offences, specifically non-consensual sex between spouses or those in spousal-like relationships.
The Trust has stated that though it is certainly not its position that husbands have the right to impose themselves on their wives citing marriage sans consent but it is its position that trust and dignity in a marriage is a two-way street and that the Petitioner(s) have reduced the multifarious issue to "consent" which is to be certainly looked at from lens of "context" as well. It is stated that there is no merit in the contention that the legal framework as it stands today does not recognise the need for consent in spousal sex
"Striking down of Exception 2 to Section 375 will have the effect of rendering the fourthly to Section 375 otiose since it is predicated on natural conjugal relations between spouses. That said, the husband is not given a free pass with respect to unnatural offences under Section 377 or even sexual cruelty under Section 498A which is broad enough to encompass non-consensual sex/spousal sexual violence" - Excerpt of Submission
Judicial Review & Separation of Powers
On the question of judicial review, the Trust states that the criminalisation of Marital Rape will create a new class/species of offence which is "beyond the pale of the power of judicial review" and meddles with the doctrine of Separation of Powers which, according to the intervenor, is not a mere "mere transactional construct for division of territory/turf between the various organs".
It adds, "In short, the prayers sought by the Petitioners require this Hon’ble Court to violate one of the most fundamental, sacrosanct and basic features of the Constitution, namely the doctrine of separation of powers....(...).... creation of an offence.... will result in if granted, requires considerations of social impact followed by the creation of an entire ecosystem such as definition, process, safeguards, evidentiary standards and forum, among other things"
Need for additional Amici & Existing provisions
Trust states that in the interest of balance and from perspective of natural justice, inputs "ought to have come from an additional amicus" (Vol. both Senior Advocates Rajshekhar Rao & Rebecca John had argued against the constitutionality of exception 2 to section 375 of the IPC)
From the context of existing provisions, the Trust has argued that the neither does Exception 2 of Section 275 envisage or require a wife to submit to forced sex by the husband and nor does it encourage a husband to impose himself upon the wife, adding that Sections 376B of the IPC along with Section 198B of the CrPC, Section 498A of the IPC & Domestic Violence Act shows a clear legislative intent to criminally prosecute a husband who refuses to respect consent.
Exception to Section 375 not colonial
The Trust has stated that the exception 2 to Section 375 which is touted as a colonial provision is not colonial as it has undergone the process of Indianisation after the coming into force of the constitution. The Trust has contended that such an inconsistency, that the exception lacks constitutionality cannot be presumed at the outset, but must be demonstrated by the challenger.
"A law cannot be struck down merely because it predates the Constitution since going by that logic, the bulk of the Indian legal system must be presumed unconstitutional at the outset until established otherwise, which runs contrary to the language of and intent underlying Article 13(1)," it adds.
Stressing on the fact that the legislature has power & freedom to ideate in consultation with a vast array of stakeholders & take into account its socio-cultural norms, the Trust states that pontification by the Petitioners in the name of international norms and standards is unnecessary.
It is argued that the Petitioners have not placed a single document on record to demonstrate that post the coming into force of the Constitution, the Legislature has retained Exception 2 citing the doctrine of coverture (Vol. from English jurisprudence) or for treating wives as the husbands’ chattel and that, in the absence of any such supporting material, to use “patriarchy” as the argument against Exception 2 and to impute it to the Indian Legislature as well as the Indian society at large, is to project colonial attitudes onto the Bharatiya society without basis.
In short, baseless and slavishly imported rhetoric cannot replace cogent and evidence-based legal arguments, it adds.
(Mis)Application of Independent Thought Vs. Union of India
The Trust has stated that in the landmark judgment which has been cited for establishing their case has no scope for application of the Inversion Test.
"The reason for the Supreme Court’s reticence on the subject is justified given that neither was it an issue before it in the said judgement, nor could the Court have created a new species of offence even in exercise of its powers under Article 141"
The Written submission have been drawn by Advocate J. Sai Deepak & filed by Priyanka Agarwal, Shaktiki Sharma, Pragya Parijat Singh and Avinash Kumar Sharma
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