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Signature valid In short "Vishaka" Digitally Signed By:VIPIN Signing Date:11.05.2022 18:29:14
26.08.2017 revealed that for defining marital rape, a broad-based consensus of the society would have to be obtained. In the said written submissions, according to Mr Gonsalves, UOI had taken the position that it was, therefore, necessary to implead various State Governments to obtain their opinion and avoid complications that may arise at a later stage. The submission was that, although five years had passed, UOI had failed to undertake a consultative process which is evident from a perusal of written submissions dated 12.01.2022, additional affidavit dated 03.02.2022 and further additional affidavit dated 21.02.2022.
52. 'Fair labelling' is an important part of criminal law jurisprudence. The label should give sufficient information to the public at large as regards the offence that is committed. It plays an educative and declaratory function and, thus, in a way, reinforces the standards that the society may have set for itself. It also helps in establishing the principle of proportionality as the criminal justice system needs to provide for punishment that is proportionate to the gravity of the offence. A fair label plays an important role in expressing social disapproval of certain sorts of sexual offences; rape being one of them. Thus, helps, in a sense, the perpetrator, the victim as also the prosecution and the defence in grappling with the offence and its consequences. Fair labelling enables criminal justice professionals, judges and other stakeholders to make fair and sensible decisions [See Andrew Ashworth & Jeremy Horder, Principles of Criminal Law, Seventh Edition, 2003 at page 25; Scottish Law Commission's Discussion Paper on Rape and Signature valid Digitally Signed By:VIPIN Signing Date:11.05.2022 18:29:14 other Sexual Offences, at paragraph 4.16; also see State of Karnataka v. Appa Balu Ingale & Ors., 1995 Supp (4) SCC 469.] 52.1. The attempt of the prosecution to seek conviction for rape in the guise of grievous hurt or cruelty is like attempting to fit a square peg in a round hole. The ingredients of offences such as grievous hurt, outraging the modesty of a woman and cruelty are substantially different from that of rape. Over the years, rape laws in India have evolved to the extent that victims are entitled to protection and support from the State. However, because marital rape is not called out as rape; generally, it enables States to shirk responsibility and accord the same level of care and protection which is given to a woman who is raped by a person other than her husband. [See the following provisions contained in the Code: Section 357A (Compensation to all victims of crime); Section 357C (all hospitals to provide free and immediate first aid to rape victims); Section 164A (protocols of medical examination for rape victims); Section 154 (recording complaint of rape victim); Section 164 (manner of recording statement of a rape victim); Section 309 (expedited trial in rape cases); Section 327 (in camera trials of rape offences); Section 53A (medical examination of the rape accused if it is believed that such examination will afford evidence of the commission of an offence)]. Likewise, Section 228A of the IPC protects the rape victim by penalizing disclosure of her identity. Similarly, the proviso appended to Section 146 of the Evidence Act prohibits eliciting evidence or putting questions in cross-examination to the victim as to her "general immoral character" or "previous sexual experience" for establishing consent or the quality of consent.
93. Admittedly, the purpose of Section 375 of the IPC is to punish non- consensual sexual acts - also it cannot be disputed that marital obligations, duties, rights or privileges cannot be enforced through violence or any other non-consensual acts, which would otherwise be an offence. Consequently, the classification between marital and non-marital relationships in Section 375 is impermissible under Article 14 of the Constitution. The factum of marriage would not bridge the gap between permissible and an impermissible act by treating the said fact as equivalent to conveying willingness or consent to engage in a sexual act as described in Clauses (a) to (d) of Section 375 of the IPC. Therefore, the substance of marital relationship between the offender and the victim is irrelevant for the purposes of Section 375. If, however, the opposite were true, the exception ought to have made an explicit alteration in the nature of consent that is required in a marital relationship (whether deemed or otherwise). In the absence of such provision, the court should not discover some undisclosed and unknown reason for classification which otherwise is hostile and discriminatory vis-à-vis an individual; in this case a married women victim. 93.1. The absence of consent is a foundation of the offence of rape under Section 375 of the IPC. The decriminalization of an act by a husband which Signature valid Digitally Signed By:VIPIN Signing Date:11.05.2022 18:29:14 would otherwise constitute rape under the IPC is based on an archaic belief that the very act of marriage contemplates consent by the wife for sexual intercourse, for all times, during the subsistence of matrimony or, at least, till such time they will live separately whether under the decree of separation or otherwise. Apart from being founded on an outdated notion of the concept of marriage and the status of the wife within it, such a presumption concerning consent is inconsistent with the applicable law. Any suggestion to the contrary is manifestly arbitrary and unreasonable and constitutes a gross denial of equal protection of laws to a married woman. [See Lachhman Dass v. State of Punjab, (1963) 2 SCR 35329; Independent Thought; and Shayara Bano.] 93.2. The importance of consent finds legal recognition under the IPC itself including offences falling under Chapter XVI involving offences affecting the human body which could be a precursor to non-consensual marital intercourse or those which deal with the product of such intercourse viz. procreation. [See Section 354A (sexual harassment); Section 319 (hurt); Section 339 (wrongful restraint); and Section 313 (causing miscarriage without woman's consent) of the IPC.] 93.3. The classification based on marital status creates an anomalous situation inasmuch as it gives a married woman lesser protection against non-consensual sexual intercourse by their husbands than against strangers. It also results in lesser protection than that which is available to a woman who is subjected to a non-consensual sexual act by a cohabitee or a live-in partner. This defeats the argument put forth that MRE has to be saved as it seeks to protect the institution of marriage. This is particularly disconcerting when IPC in the same breath recognizes that an act perpetrated by a person Signature valid In short "Lachhman Dass"
96. Striking down MRE will not create a new offence. The removal of the MRE from the statute on the ground that it is discriminatory and unconstitutional will only bring within the fold of offenders a particular category of offenders who are, presently, not subjected to the rigour of rape Signature valid Digitally Signed By:VIPIN Signing Date:11.05.2022 18:29:14 law. The act of rape is punishable. The striking down of MRE will not criminalize a new behaviour or act.