Advocate J Sai Deepak said that the issue of marital rape should be kept outside the jurisdiction of courts. While appearing for a group called Men Welfare Trust (MWT), he told, “When the legislature does not act, I certainly believe that the judiciary can issue an advisory or at least make its mind clear concerning the pace at which it should move. But what should be the end outcome of that issue and what must be the final position that is to be taken for that policy is not something that can be decided by a court of law even if it a constitutional court exercising powers under Article 226 of the Constitution. This power is nowhere comparable to the power of the Supreme Court under Article 141.”
He filed his submissions before a bench of Justices Rajiv Shakdher and C Hari Shankar while responding to public interest litigation (PIL) filed by NGOs RIT Foundation and All India Democratic Women’s Association seeking to strike down the exception granted to husbands under the rape law. The petitioners have questioned the constitutional validity of section 375 of the IPC because it discriminated against married women being sexually assaulted by their husbands.
He argued that the Court has been asked to decide since the legislature has not taken a call on the issue, but if that becomes a reason for the judiciary to “cross a line,” then it would become a very dangerous precedent. There will be a trickle-down effect as other courts will entertain similar matters.
He further said that if the effect of courts removing a provision is to decriminalize something like Section 377, then that’s a different situation. However, striking down the 2nd exception to Section 375 enlarges the scope of the existing offense, thereby creating a new type of offense when the legislature has taken a position to the contrary. Also, in this case, even if the exception were to be presumed to be unconstitutional, the Court should give space to the legislature in respect of the doctrine of separation of powers.
He stated that a perusal of Section 375, 376B, 376C, and 498A of the IPC showed that the legislature has identified four different situations where a woman’s bodily integrity is in danger. Hence, there is an intelligible differential in the manner in which these offenses are treated. Deepak, while concluding, mentioned that the international legislation relied upon by the petitioners comes with some sort of safeguards and that even international instruments speak of gender neutrality. “We recognize there are more genders & the offense of rape is not related to one particular gender.”
