Addendum: The Impact of the S. 2(q) Judgment upon the Marital Rape Exception

Previously on this blog, we have discussed the marital rape exception under the Indian Penal Code. Recall that Section 375 of the Indian Penal Code sets out the ingredients of the offence of rape. Exception 2 to Section 375 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” I had argued earlier that Exception 2 creates two classes of women – married and unmarried (for the moment, let us ignore the intermediate category of separated women, who fall within S. 376B of the IPC), and accords unequal protection of law to these classes. It does likewise with men, and consequently, infringes Article 14 of the Constitution.

The objection to this line of argument is as follows: the effect of striking down Exception 2 would be to create a new offence altogether: the offence of marital rape. This is, in essence, a legislative task. Consequently, a Court, exercising judicial functions, will be overstepping its jurisdiction if it legislates a new crime.

How persuasive you find this objection depends upon whether you read Exception 2 as classifying acts or classifying persons (a distinction made notorious, of course, in Koushal vs Naz). Yesterday, however, we discussed the judgment of the Supreme Court in Hiral P. Harsora vs Kusum Narottamdas Harsorawhere Justice Nariman, writing for a two-judge bench, struck down S. 2(q) of the Domestic Violence Act on the ground of an Article 14 violation. In my view the Court, in Hiralal P. Harsora, did precisely what it would need to do to strike down the marital rape exception. Recall that S. 2(q) of the DV Act stated:

“….“respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.

Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.”

Just like the marital rape exception, S. 2(q) effectively stipulated that acts of “domestic violence” (defined in S. 3 of the Act) would not fall within the DV Act if they were committed by female and/or persons (who were not relatives of a husband or male partner). The Court reasoned that this classification bore no rational relation with the purpose of the Act, which was to protect women from domestic violence “of all kinds”. The effect of the Court’s judgment was to widen the ambit of the DV Act by ensuring that henceforth females who committed domestic violence could be proceeded against under the Act. Or, if you want to put it another way, the Court legislated a new offence (albeit not a criminal offence): commission of domestic violence by females (who are part of a domestic relationship). Transposing this logic to the marital rape exception the argument is straightforward: the marital rape exception stipulates that husbands who commit rape do not fall within the ambit of S. 375 IPC. This classification bears no rational relation with the purpose of the Section or the IPC (i.e, to prevent and punish crime). The effect of striking down the Exception will be to widen the ambit of S. 375 by ensuring that henceforth husbands who commit rape can be proceeded against under S. 375. This might amount to “legislating a new offence” – but the Court just did that last week.

An immediate objection may be raised: S. 2(q) of the DV Act was part of the definitional section, while S. 375 IPC stipulates the ingredients of the crime of rape. The two are not equivalent, therefore, and it is only in the latter case that constitutional invalidity would result in legislating a new offence. In my view, however, the distinction is only a semantic one. As described above, what the Court is doing in the two cases is the same thing, and the result is the same. In both cases, two things are happening: an act that was not previously an offence is now an offence (commission of domestic violence by females and commission of rape by husbands); and a class of persons that were previously exempted from liability for committing the same act (females committing domestic violence and husbands committing rape). The basis is also the same: the two enactments tackle a certain kind of offence (domestic violence, rape), and consciously leave out a class of persons from liability, even though that class of persons might – in the non-legal sense – commit exactly that offence. Whether this is done through the definitional section or the ingredients section is a question of legal form, and not relevant to an Article 14 enquiry.

However, at this stage, a further objection may be made: the previous argument only deals with the act that constitutes the offence. S. 375, however, does not merely punish sexual intercourse, but punishes sexual intercourse without consent. The marital rape exception is based upon the premise that within marriage, spousal consent to sexual intercourse is presumed. Whatever the validity of this assumption, it is open to the legislature to make it; more importantly, if this is the basis of Exception 2, then it takes the provision out of the ambit of Article 14 altogether, and also dispenses with Hiralal P. Harsora as precedent.

It is no doubt true that the underlying assumption of Exception 2 is the doctrine of presumed consent within marriage. However, that is not what the Exception says. Had the Exception stated that “Sexual intercourse by a man with his own wife is deemed to be with her consent“, then it would have been a different matter.

It might be objected, however, that this is precisely the semantic distinction that we have argued against above. Section 375 is entirely about the question of consent. Consent is built into the definitional clauses. Consequently, the only reasonable way to read Exception 2 is to read it as stipulating deemed consent.

Such a reading, however, would put Exception 2 at odds with the rest of the IPC. Consider Section 87 of the IPC:

“Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm.”

Now, while Exception 2 states that marital rape is not “rape”, legally defined, it does not exempt marital rape from falling within other sections of the IPC. Prima facie, marital rape could constitute hurt (S. 319), wrongful restraint (S. 339), use of criminal force (S. 350), and sexual harassment (S. 354A). Now, under the doctrine of presumed consent, none of these offences could apply to sexual intercourse between husband and wife, since Section 87 would kick in. Consequently, there ought to have been a marital exception – along the lines of Exception 2 to Section 375 – for each of these provisions. However, there isn’t. Consequently, the doctrine of presumed consent cannot be taken to be the only explanation for the marital rape exception.

In fact, the explanation that is most commonly given – and which was invoked during the recent public debates on marital rape – is that the Exception is necessary in the interests of family unity and integrity. Whatever one may think about the merits of this answer, and the further argument that it family unity is a legitimate legislative purpose under Article 14, it is important to note that this argument is also excluded by Hiralal P. Harsora, since Justice Nariman, in that case, clearly derived the legislative purpose from the statement of objects and reasons and preamble of the DV Act, and did not engage in a roving enquiry about other possibly justified purposes. Under this framework, it is immediately clear that family unity is no part of the legislative purpose underlying the IPC as a whole, or Chapter XVI (“offences affecting the human body”), or even S. 375. The IPC is a criminal statute, and its purpose is the prevention, detection, deterrence, and punishment of crimes. And it is impossible to conceive of a defence of the classification drawn by the marital rape exception that bears a rational relation to these goals.

Consequently, I would argue that the reasoning in Hiralal P. Harsora, if applied consistently, leaves the Supreme Court with no other option but to strike down the marital rape exception as unconstitutional, if and when a challenge was brought before it.



Filed under Article 14, Equality, Marital Rape

5 responses to “Addendum: The Impact of the S. 2(q) Judgment upon the Marital Rape Exception

  1. I think it is possible to persuasively argue in favor of the legal principle that while the Judiciary under the Indian Constitution can strike down a law that creates a criminal offence on the ground of arbitrariness, it cannot add language to a statute that would result in creating an offence or in criminalizing acts or acts by an exempted (by the legislature) category of persons and that the latter does not fall within the powers and jurisdiction of the Supreme Court.
    Criminalizing conduct is a legislative function and a Court cannot usurp this function.
    In case a criminal law offends Article 14 by arbitrarily exempting a category of persons, then the Court can strike down the entire law compelling the legislature to re-enact the law. This would of course require a well-functioning legislature, which India lacks.

  2. “As stated above, the Supreme Court held as far back as 1812 in United States v. Hudson and Goodwin, and several times since then, that there are no federal common law offenses and that before someone can be punished as a criminal, his conduct must “plainly and unmistakably” run afoul of a federal criminal statute.

    As the court has also stated, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures, and not courts, should define criminal activity.”

    The court deviated from this sound reasoning in Dirks, a move that has seemingly been tolerated by Congress. The court should not compound its error by going one step further, even if it seems like a small step. If Congress wishes to criminalize insider trading or expand the scope of current criminal liability, it can and should do so.”


  3. also of interest on the point whether Courts can criminalize conduct on their own – “Criminalizing From the Bench: The Expansion of Section 10(b) in United States v. O’Hagan” at

  4. Pingback: Guest Post: Consistency across Statutes and Article 14 in Harsora vs Harsora – A Further Critique | Indian Constitutional Law and Philosophy

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