Thepresent petition deals with the contention raised by the petitioner statingexception (ii) of section 375 as being unconstitutional. thedoctrine of Supremacy of Parliament connotes that Parliament enjoys unlimitedpowers of legislation and is fully authorized to make, alter or repeal any lawconcerning anything and no parliament can bind a future parliament that itcannot pass a law or cannot reverse or amend an existing law. Also, as perarticle 142 of the constitution, decrees passed by supreme court are consideredas laws. in the case of Independent thought v UOI 1 , the supreme court madean amendment changing the exception (ii) of section 375 to Sexual intercourse or sexual acts by a man with his own wife, the wifenot being 18 years, is not rape.The counsel submits that since an amendment has already beenmade regarding the minor wife issue, the petitioners should now focus on theaspect of marital rape.
The court did not deal with the issue of marital rapein the Independent thought v UOI case, since the petitioners in that casedecided to cover only the minor wife issue, with regard to the age in theexception. Sexualintercourse by a husband to his wife, with or without consent cannot be treatedas “rape”.The counsel hereby submits that at the outsetit wishes to make it clear that the respondent is not denying the suffering andsexual abuse of either of the spouse in a matrimonial relationship. However,the sexual abuse in a domestic relationship should not be termed as Rape.
Eventhe law on domestic violence which was enacted in as recent as 2005, refused toterm it as “Rape”. This clearly shows the intention of the legislator that itdid recognize and provided a remedy in cases of sexual abuse but refused toterm it as “Rape”.Ifthere is the act of sexual intercourse it is without consent of the women,however a marriage is solemnised fully by choice and enthusiastic agreement ofboth the man and woman with full knowledge of friends and family and not byfraud or accident or force. Having given the consent to marriage, then bydefinition wife (and also husband) are making conscious decision to keep sexualrelations with her husband (or wife) as marriage without sex is an anathemawhich has been stated in Vinita Saxena Vs Pankaj Pandit by supreme court ofIndia on 21 March, 2006. 2Thatin case of divorce or separation the woman effectively withdraws her consentfor having sexual relations with her estranged husband. An act of sexualintercourse with application of force in such a situation by the husband mayfall within the definition of rape as there is no consent and he will be liablefor criminal prosecution and the present rape law already covers such situationand is applicable in divorced, separated, estranged married couples. That before removing the protection granted tohusbands, there is a need to look into the issue as a whole. A person when getsmarried be it wife or a husband anywhere in the world loses his/ her right toperform the sexual act with anyone other than the spouse in other words amarried man or a women cannot have sex outside marriage even if it is withconsent and anybody indulging into it amounts to criminal offence U/s 497 ofthe IPC.
So when a person is getting married, he or she is giving consent tothe spouse to have sex and any such sexual act cannot be termed as Rape. Ifthere is a physical harm to either of the parties then it may be called sexualassault for which there are laws already in place. There are two corresponding rights involved inthe case. On the one hand there is right to say no to a sexual intercourse tothe spouse and on the other hand there is a right to have a conjugalrelationship between the spouses. The two rights have to go hand in hand so thata happy marital relationship may sustain during the lifetime of the spouses.Accordingly for a happy married life, there has to be an understanding betweenthe husband and a wife and if there is a breach of understanding, legalrecourse should be available to the spouses but in no circumstances a husband shouldbe branded a “Rapist”.Thata mere comparison between the marriages solemnized in Indian society andwestern societies makes it clear that in Indian society marriage is consideredto be a sacred relationship with aim to procreate and lead a happy marriedlife.
The marriages in the western world are considered to be a contractbetween the husband and wife. “MaritalRape” can not apply in Indian context. And if there is an abuse of sexualnature, Indian laws have already provided a remedy to deal with it. The Applicant wishes to argue that theexisting laws are very much capable of dealing with the cases of sexual abuseof women and there is no need to either bring a fresh law to deal with it northere a requirement to withdraw the protection granted to husbands providedunder Section 375 of the Indian Penal Code. 1 IndependentThought vs. Union of India (UOI) and Ors.
AIR 2017 SC 1298 2Vinita Saxena Vs PankajPandit AIR 2006 SC 1687