JUDGMENT : Rajiv Shakdher, J. Particulars Page No. Preface 4 Arguments against striking down the impugned provisions 8 Arguments advanced for striking down the impugned provisions 33 Submissions advanced by Amicus Curiae 62 Analysis and Reasons 79 I. Brief History of Rape Law 79 II. Separation of Powers 89 III. Judicial Restraint 95 IV. Ambit of Section 375 of IPC 99 V. In defence of MRE 105 V(i) Constitutional viability of classification between married and unmarried women in the context of Article 14. 106 V(ii) Relationship-centric provisions in the IPC 113 V(iii) A married woman can take recourse to other remedies 115 V(iv) Conjugal expectation 117 V(v) Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage. 118 V(vi) Lodgement of false cases 120 V(vii) Invasion of Private Space 123 V(viia)Gathering evidentiary material would be difficult 124 V(viii) New offence 126 VI. MRE violates Article 21 of the Constitution 133 VII. MRE violates Articles 15 and 19(1)(a) of the Constitution 139 VIII. Separated husbands 140 IX. Presumption of Constitutionality of Pre- Constitutional Statutes 143 X. Reliance on Decisions of Foreign Courts & International Covenants & Conventions 146 XI. Parliamentary Committee Reports 158 XII. Material & Case law Cited on behalf of the Intervenors 163 XIII. Summing up 187 Conclusion 192 Preface: 1. What looms before us is Lord Hale's Ghost. Thus, the key question which arises for consideration in these matters is whether or not we should exorcize Hale's Ghost? Hale’s formulation was embedded in the doctrine of coverture; a condition which allowed a married woman to sue only through the personality of her husband. Since then, the world has moved on. Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing. In plain words, the poser before the court is: Should a husband be held criminally liable for raping his wife who is not under 18 years of age? 1.1. Before I proceed further, I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. 1.1. Before I proceed further, I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on the society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. That said, it is incumbent on courts to take decisions concerning complex social issues and not dribble past them, as that is the mandate of the Constitution and, therefore; a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution. Thus, the mea culpa on behalf of the institution is that one way or the other the issue ought to have been laid to rest much earlier. 2. As was evident to us during the hearing that both within the court and outside, people all across have views concerning the issue at hand which vary in their contour and texture depending on which side of the debate they fall on; the legal issue, though, rests in a narrow space. 3. The moot point is (which is a more particularized version of what was stated right at the beginning) whether or not Exception 2 appended to Section 375 of the Indian Penal Code, 1860 [hereafter referred to as 'IPC'] should remain on the statute. Having said that, it is the impact and its ripple effect, in law, that one is required to grapple with. Thus, those who support the proposition that Exception 2 to Section 375 of the IPC, which is ubiquitously referred to as Marital Rape Exception [hereafter referred to as ‘MRE’] should be struck down, broadly, contend that it is an archaic provision which represents the most abhorrent vestiges of colonialism while those who argue that the provision should be retained on the statute, contend that striking down the provision is fraught with the danger of disrupting marital and familial relationships, triggering misuse of law and transgression of the Constitutional periphery within which the courts are obliged to function. 4. 4. At this juncture, I must also advert to the fact that those who seek striking down of MRE i.e., Exception 2 to Section 375 of the IPC, in consonance with the arguments advanced qua the said provision, also seek striking down of Section 376B which concerns sexual intercourse by a separated husband with his wife, albeit, without her consent. Consequently, prayer is also made for striking down Section 198B of the Code of Criminal Procedure, 1973 [hereafter referred to as the 'Code'] which prohibits a court from taking cognizance of an offence punishable under Section 376B of the IPC except upon satisfaction of the facts which constitute the offence once a complaint is lodged by the wife against her husband. 5. Thus, for the sake of convenience, MRE/Exception 2 to Section 375 of the IPC and Section 376B as also Section 198B of the Code will be collectively referred to as the “impugned provisions” unless the context requires one to refer to the provisions individually. 6. Besides, at this juncture, it would be relevant to note that one is dealing with four petitions out of which two are purely in the nature of Public Interest Petitions while the third petition (i.e., W.P.(C)No. 5858/2017) which concerns a person by the name, Ms Khushboo Saifi, is a halfway house, in a sense, that she has also made assertions which seek to establish that she has been subjected to sexual abuse including rape by her husband. She contends that because MRE continues to remain on the statute, she is disabled from prosecuting the complaint concerning rape allegations made against her husband. 6.1. The fourth petition (i.e., W.P.(Crl.) No. 964/2017) has also been instituted by an individual i.e., Mr Farhan. The prayer made in the writ petition is to quash a particular FIR i.e., FIR bearing No. 204/2016, dated 25.11.2016, registered at Police Station Hauz Qazi, Delhi, under Sections 376/363/342 of the IPC read with Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 [in short ‘POCSO Act’] and the proceedings commenced thereto. 6.2. Qua this petition, no oral arguments were advanced by the counselon- record for the petitioner i.e., Mr R.S. Malik. A perusal of the written submissions filed on behalf of the petitioner is suggestive of the fact that issues concerning Muslim Personal Law have been raised. 6.2. Qua this petition, no oral arguments were advanced by the counselon- record for the petitioner i.e., Mr R.S. Malik. A perusal of the written submissions filed on behalf of the petitioner is suggestive of the fact that issues concerning Muslim Personal Law have been raised. It is, broadly, argued that MRE is not impacted by provisions contained in the POCSO Act. 6.3. This submission is made in the backdrop of the following broad averments made in the writ petition : that the petitioner is married to one Ms Alina i.e., respondent No. 2, and that at the point in time, when the petitioner i.e., Mr Farhan and Ms Alina/respondent No. 2 entered into sexual communion in the first instance, the latter was about 15 years of age. In other words, based on Muslim Personal Law (Shariat) and Muslim Personal Law (Shariat) Application Act, 1937 [in short "Shariat Act"] which accords pre-eminence to the former, the stand taken is that the provisions of the POCSO Act would have no impact on MRE. 6.4. Since, these are aspects on which arguments were not advanced, neither by Mr Malik nor the counsel for the respondents, this petition will have to be dealt with separately after pronouncement of the decision in the remaining three cases. 7. With this preface, let me, broadly, cull out the arguments advanced by learned counsel for the parties both "against" and "for" the proposition that the impugned provisions should be struck down. Arguments against striking down the impugned provisions 8. The charge against the proposition that the impugned provisions should be struck down was led by Mr J. Sai Deepak, who appeared for the intervenor - Men Welfare Trust (MWT) and Mr R.K. Kapoor, who represented another applicant i.e., an NGO by the name Hridaya. 9. The arguments of Mr Deepak, broadly paraphrased, were as follows : 9.1. MWT is not opposed to the criminalization of spousal sexual offences, especially, non-consensual sex between spouses or those in spouse like relationships. MWT does not contend that husbands/men have a right to impose themselves on their wives/spouses sighting marriage, as be all and end all of, implied consent to every marital privilege including sexual intercourse. That being said, trust, dignity and respect which form the basis of a marriage is a two-way street. MWT does not contend that husbands/men have a right to impose themselves on their wives/spouses sighting marriage, as be all and end all of, implied consent to every marital privilege including sexual intercourse. That being said, trust, dignity and respect which form the basis of a marriage is a two-way street. A multilayered and multivariable nature of a marital relationship has been reduced by the petitioners to one singular issue i.e., consent; a proposition with which MWT disagrees. MWT propounds a more calibrated position. Thus, MWT's objections to the writ actions are, principally, the following : (i) The prayers made in the writ petition are beyond the scope of this court's jurisdiction and/or power that it may wield under any law or the Constitution since the prayers if granted would create a new class/specie of offence which is beyond the power of judicial review conferred on this court. In other words, if the prayers, as sought, are granted, it would erode and/or violate the basic feature of the Constitution, namely, the Doctrine of Separation of Powers that too in a matter concerning the criminalization of a sexual act committed by a husband on his wife, which is, otherwise, protected under MRE. (ii) The Doctrine of Separation of Powers does not have a mere transactional construct i.e., division of territory/turf between various organs of the State but is meant to preserve the right of the Republic meaning the people to participate in law and policymaking lest it becomes the preserve of the few. Therefore, if this court were to grant the prayers sought by the petitioners, it would have the effect of keeping the Republic outside the pale of participation in law and policymaking on a sensitive social issue thereby truncating fundamental rights as well as empowering an "unelected body" to undertake an exercise which is beyond its constitutional mandate and expertise. The striking down of MRE would result in the creation of a new offence without considering its social impact. There is a need to create an ecosystem to deal with the issue at hand, such as the provision of a "definition", "processes", "safeguards", "evidentiary standards", "forums" amongst others; none of which the court is equipped to forge or prescribe. The court is, thus, a sub-optimal forum for considering a variety of perspectives that are not only legal but also social and cultural. The court is, thus, a sub-optimal forum for considering a variety of perspectives that are not only legal but also social and cultural. The court by its very construct does not allow the participation of multiple stakeholders which is why the creation of a new class of offence is beyond its constitutional remit involving judicial review. The proceeding at hand is a textbook case in point since it has not allowed for inputs from various legitimate stakeholders who are better qualified to weigh in on the subject beyond the narrow and incomplete confines of legality and constitutionality. (iii) Since the learned Amici, lean in favour of the position adopted by the petitioners, in the interest of balance and natural justice, inputs ought to have been sought from other Amicus Curiae as well. (iv) It is emphasized that while MWT does not question the right of learned Amici to hold and present their position on the issue at hand, additional Amicis should have been appointed to present a more diverse perspective. (v) MRE does not in any manner envisage or require a wife to submit to forced sex by the husband and does not encourage a husband to impose himself on the wife; contrary to what the petitioners contend. It is important to note that there are remedies available to address non-consensual sex between spouses, something which is apparent on a plain reading of Section 376B and Section 498A of the IPC as also the provisions of the Protection of Women from Domestic Violence Act, 2005 [hereafter referred to as "D.V. Act"]. These are provisions that bring forth the legislative intent to criminally prosecute a husband who refuses to respect consent. (vi) The legislature, by creating a separate legal ecosystem for dealing with spousal sexual violence, has, in effect, criminalised non-consensual sex between spouses without terming it as rape within the meaning of Section 375 of IPC and, at the same time, balanced the rights of husbands by appending MRE. This distinction has been made by the legislature having regard to the complexity involved while dealing with the institution of marriage (and not on account of patriarchy) as contended by the petitioners. (vii) The distinction is, both, reasonable and based on intelligible differentia and therefore, must pass muster of Articles 14, 15, 19 and 21 of the Constitution. This distinction has been made by the legislature having regard to the complexity involved while dealing with the institution of marriage (and not on account of patriarchy) as contended by the petitioners. (vii) The distinction is, both, reasonable and based on intelligible differentia and therefore, must pass muster of Articles 14, 15, 19 and 21 of the Constitution. (viii) Assuming for the sake of argument that the legal framework which criminalises spousal sexual violence is inadequate, that by itself cannot be the reason to declare the impugned provisions unconstitutional. The gaps in the law which arise on account of inadequacy cannot be remedied by the judiciary since these aspects fall within the exclusive domain of the legislature. This court, exercising powers under Article 226, cannot fill a legal void or redress obvious lacunae. Although, the Supreme Court while exercising powers under Article 141 could do so since this court is not invested with the said power it cannot fill the perceived vacuum in the framework of the law. (ix) Although the impugned provisions are part of our colonial legacy, they have undergone a process of Indianisation after the enactment of the Constitution; an aspect which is evident from the Parliamentary cogitations and consequent amendments effected in the IPC and the Code. (x) Article 372 of the Constitution protects laws enacted prior to the Constitution coming into force as long as they pass muster of other provisions contained in the Constitution, in particular, provisions concerning fundamental rights. Therefore, the presumption of constitutionality also attaches to pre-constitutional laws unless successfully rebutted by one who seeks to assail such a law. A law cannot be struck down merely because it pre-dates the Constitution. (xi) The legislature has the power and right under the Constitution to undertake social experiments so long as they are not manifestly arbitrary; the judiciary cannot interdict such laws merely because it has a different or a diametrically divergent point of view. The leanings or, individual proclivities of judges cannot become the basis for exercising the power of judicial review. (xii) In a matter relating to spousal sexual violence, "Bharatiya Legislature" should have the power and freedom to ideate and consult with other stakeholders having regard to the social and cultural mores of our society without being subjected to pontification by the petitioners in the garb of "international norms and standards". (xii) In a matter relating to spousal sexual violence, "Bharatiya Legislature" should have the power and freedom to ideate and consult with other stakeholders having regard to the social and cultural mores of our society without being subjected to pontification by the petitioners in the garb of "international norms and standards". This approach of the petitioners reeks of coloniality and goes against their submission that MRE is "less constitutional" since it is colonial. The petitioners' position of what is colonial and what is international is selective, convenient and constitutionally fallacious. (xiii) Furthermore, if international norms and standards are to be applied, as contended by the petitioners then, the movement all over is towards enacting gender-neutral laws in the realm of sexual violence. While MWT has actively campaigned for gender-neutral laws and the preservation of the institution of marriage, the petitioners have sought gender-specific prayers and the creation of gender-specific offences at the expense of marital institutions. The abuse of the provisions of Section 498A of the IPC has been recognised by the courts and, therefore, there is a need to introduce gender-neutrality in the sphere of sexual violence. Therefore, if MRE is struck down, it would only add to the existing inequities and injustice. Thus, the appropriate forum would be the legislature as the enactment of law requires the formulation of policy which ought to be informed by a baseline study and not mere legal arguments. Since this court has taken up the matter after seven years and it has taken over two months to hear legal submissions, the legislature is surely entitled to, being accorded sufficient time to undertake consultation with the States and various public interest groups and organisations which operate in this space. There does not exist a single judgment either in Bharat or elsewhere which has granted the kind of prayers sought by the petitioners. No amount of semantic jugglery misrepresentation of case law can refute this fact. At best this court can prod the legislature into expediting the process of consultation and legislation if the legislature deems it necessary but under no circumstances, can a court of law direct a direction or outcome of the process. In fact, the court cannot even influence the process by issuing an advisory opinion on matters which are outside the scope of its constitutional remit. In fact, the court cannot even influence the process by issuing an advisory opinion on matters which are outside the scope of its constitutional remit. It is only the Supreme Court which has the power to issue an advisory opinion under Article 143 if the Hon'ble President of "Bharat" so seeks it. There is no such power vested in the High Court under Article 226 to issue an advisory opinion to the legislature either of the Centre or the State. The striking down of MRE would result in enlarging the scope of the said provision and end up in recognizing the sexual act committed in the context of marriage as an offence. This power is beyond the scope of the court's power of judicial review available under Article 226 of the Constitution or even to the Supreme Court under Article 141 of the Constitution. Therefore, reliance on judgments such as Shreya Singhal v. Union of India, (2015) 5 SCC 1 or Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 which concerns Section 66A of the Information Technology Act, 2000 [in short “IT Act”] and Section 377 of the IPC respectively would have no relevance to the instant case. These were judgments where a challenge was laid to a criminalising provision whereas if MRE is struck down, it would result in the exact opposite consequences i.e., end up criminalising an act committed by a husband qua his wife in the context of marriage. (xiv) The reliance by the petitioners on the judgment rendered in Shayara Bano v. Union of India, (2017) 9 SCC 1 is also baseless since all that the Supreme Court did was to declare the practice of talaq-e-biddat recognized under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as unconstitutional. The question as to whether criminal consequences should entail if recourse is taken to talaq-e-biddat by the husband was left to the wisdom of the legislature. (xv) If this court were to grant the prayers sought by the petitioners, it would encroach onto the exclusive domain carved for the legislature under Article 246 of the Constitution. The issue concerning marital rape/spousal sexual violence requires consideration of various aspects including social, cultural and legal. Although, the issue escalated to this court is legal, the consequences are social and cultural. The issue concerning marital rape/spousal sexual violence requires consideration of various aspects including social, cultural and legal. Although, the issue escalated to this court is legal, the consequences are social and cultural. Policymaking is today data-driven (anecdotal evidence will not suffice) and, therefore, dealing with the issue at hand as a mere lis would amount to missing the forest for the trees. The petitioner's invitation to the court to transgress the line of the Doctrine of Separation of Powers is "deeply disturbing" for it could have disastrous consequences as people's respect for institutions as well as Constitution would be diminished. Furthermore, Constitutional morality and institutional independence would stand undermined if the petitioner's prayers were to be granted. (xvi) The reliance placed by the petitioners on the judgment of the Supreme Court rendered in Independent Thought v. Union of India, (2017) 10 SCC 800 is misplaced; in particular, emphasis laid on the " inversion test" (relied upon by Ms Karuna Nundy i.e., counsel for one of the petitioners), is equally misconceived. In this context, it was contended that a bare perusal of paragraphs 1 and 190 of the judgment would show: firstly, that the court, in that case, had confined its discussion to the issue concerning whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age would tantamount to rape. Secondly, the judgment made it amply clear that the Court could not create an offence. [See paragraph 190 of Independent Thought.] (xvii) The judgment in Independent Thought was rendered to do away with the conflict which arose on account of provisions contained in the POCSO Act/Prohibition of Child Marriage Act, 2006 [in short ‘PCM Act’] and MRE insofar as it concerned girls falling in the age group 15 to 18 years. The court's anxiety was to do away with the immunity granted to men who marry girls under the age of 18 when POCSO Act defined a child as a person who was below 18 years of age. According to the court, the problem was compounded since Section 42A of POCSO Act provides that it would override all other legislations. It is in this context that the Supreme Court read down MRE with respect to a girl child falling between 15 and 18 years of age. According to the court, the problem was compounded since Section 42A of POCSO Act provides that it would override all other legislations. It is in this context that the Supreme Court read down MRE with respect to a girl child falling between 15 and 18 years of age. [See paragraphs 188 and 189 of the Independent Thought.] (xviii) Thus, petitioners cannot take recourse to the inversion test and apply the observations made in Independent Thought to buttress their stand concerning marriage between adults. [See paragraphs 73 to 75, 83 to 85, 89 to 94 and 108.] (xix) The petitioners' argument that striking down MRE would not amount to the creation of a new offence but would merely enlarge the scope of offenders is an argument that deserves to be rejected. The legislature has consistently given sui generic treatment to the institution of marriage and, therefore, the wisdom of the legislature needs to be respected. Although the impugned provisions have a colonial legacy, they should be presumed to be constitutional unless demonstrated otherwise by the challenger. [See Article 13(1) of the Constitution.] The petitioners' argument based on the judgment of the Supreme Court rendered in Navtej Singh Johar that there is no presumption of constitutionality qua statutes enacted prior to the coming into force of the Constitution is misconceived as the said judgment is "per incuriam" for the following reasons : (a) The Supreme Court has relied upon Article 372(2) and the dissenting judgment of Chief Justice A. M. Ahmadi (as he then was) in NDMC v. State of Punjab, (1997) 7 SCC 339 to conclude that pre-constitutional laws do not enjoy the same degree of presumption of constitutionality as those which were enacted after the Constitution came into force. The appropriate provision that the court ought to have discussed is Article 13(1) of the Constitution. Even though, the court notices its judgment in John Vallamattom v. Union of India, (2003) 6 SCC 611 5 which adverts to Article 13 of the Constitution, there is no discussion of that article in Navtej Singh Johar. The appropriate provision that the court ought to have discussed is Article 13(1) of the Constitution. Even though, the court notices its judgment in John Vallamattom v. Union of India, (2003) 6 SCC 611 5 which adverts to Article 13 of the Constitution, there is no discussion of that article in Navtej Singh Johar. (b) In Navtej Singh Johar, although the court referred to the judgments rendered in Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869 and State of Bombay v. F.N. Balsara, 1951 SCR 682 , both of which dealt with pre-constitutional enactments and the presumed constitutionality of those statutes, these aspects were not given due consideration in Navtej Singh Johar's case. Likewise, the courts also did not consider the impact of another judgment rendered by it in Reynold Rajamani v. Union of India, (1982) 2 SCC 474 which concerned the Divorce Act, 1869 i.e., a pre-constitution enactment. The question, therefore, which arises for consideration is whether the presumption of constitutionality attaches to pre-constitution laws. (xx) The fact that Section 376B of the IPC and Section 198B of the Code were incorporated in the respective statutes by Act 13 of 2013 i.e., after the Constitution came into force would enjoy the presumption of constitutionality. Furthermore, the court needs to recognise the fact that despite demands made to do away with MRE, the legislature chose not to remove the said provision from the statute would lend a presumption of constitutionality even to this provision. In this context, it is important to bring to the notice of the court that MRE has been adverted to in the following documents despite which the legislature has chosen, as indicated above, not to remove it from the statute: (a) Paragraph 5.9.1 of the 167th Report of the Parliamentary Standing Committee of Home Affairs on the Criminal Law (Amendment) Bill, 2012. (b) 19th Report of the Lok Sabha Committee on Empowerment of Women (2012-2013). [See paragraph 1.64.] (c) Report of Justice J.S. Verma (Retd.) Committee on Amendments to Criminal Law. [See paragraph 79 of the report.] (d) 172nd Report of the Law Commission of India on Review of Rape Laws. (b) 19th Report of the Lok Sabha Committee on Empowerment of Women (2012-2013). [See paragraph 1.64.] (c) Report of Justice J.S. Verma (Retd.) Committee on Amendments to Criminal Law. [See paragraph 79 of the report.] (d) 172nd Report of the Law Commission of India on Review of Rape Laws. [See paragraph 3.1.2.1 of the report.] (xxi) Thus, regardless of the position in law, concerning the presumption of constitutionality of pre-constitutional laws, it is inaccurate for the petitioners to contend that MRE is a colonial provision or baggage of the English Doctrine of Coverture under which the wife is treated as a mere property of the husband. The petitioners have failed to cite a single document that would demonstrate that after coming into force of the Constitution, the legislature has retained MRE by relying upon the Doctrine of Coverture. Therefore, in the absence of any supporting material, to use patriarchy in the argument qua MRE vis-a-vis the Indian Legislature as well as the Indian society at large is to impute "colonial attitudes" on "Bhartiya society", albeit, without basis. In short, baseless and slavishly imported rhetoric cannot replace cogent and evidence-based legal arguments. (xxii) Contrary to the contention of the petitioners, the impugned provisions do not suffer from manifest arbitrariness or discrimination. For petitioners to seek striking down of the impugned provisions on the touchstone of Articles 14, 15, 19 & 21, they would have to discharge the onus which rests on them i.e., that the impugned provisions are unconstitutional. The contention that they are not unconstitutional is based on the following submissions: (a) Under the IPC, sexual offences fall under Chapter XVI which relates to offences affecting the human body while offences concerning marriage and cruelty by the husband or relatives of the husband fall under Chapters XX and XXA respectively. A sexual offence committed by a person who is not a spouse or is a stranger attracts the provisions of Section 375. Likewise, gang rape attracts the provisions of Section 376D. Sexual offences committed by persons in a position of authority are covered by Section 376. Similarly, unnatural offences without exception attract Section 377. Besides this, sexual offences committed by a husband while remaining a husband attract Section 498A of the IPC. Furthermore, sexual offences committed by a husband after legal separation or de facto separation attract the provisions of Section 376B of the IPC. Similarly, unnatural offences without exception attract Section 377. Besides this, sexual offences committed by a husband while remaining a husband attract Section 498A of the IPC. Furthermore, sexual offences committed by a husband after legal separation or de facto separation attract the provisions of Section 376B of the IPC. Notably, under Section 376(2), although, a host of dramatis personae are covered and, if found guilty, accorded a punishment of not less than 10 years, with life imprisonment prescribed as maximum punishment; a specific provision under Section 376B is engrafted in the IPC for the husbands. This is also true with regard to those who are covered under sub-section (2) of Section 376 of IPC. Even though, this provision relates to a “person in authority”, it does not include husbands. The provision of the IPC when read along with Section 114A of the Indian Evidence Act, 1872 [hereafter referred to as the "Evidence Act"] would have grave consequences if extended to husbands. Section 114A of the Evidence Act, inter alia, provides that in a prosecution for rape under various clauses of Section 376 of the IPC referred thereto where sexual intercourse by the accused is proved and the question which arises for consideration is as to whether or not it had the consent of the woman and if the woman states that she did not accord consent, the court shall presume that no consent was given by the woman. The explanation appended to this section makes it clear that sexual intercourse shall mean any of the acts mentioned in Clauses (a) to (d) of Section 375 of the IPC. This provision has the portent of disrupting marital relationships. (xxiii) Striking down MRE would render the provision provided under the heading "Fourthly" in Section 375 of the IPC otiose since it is predicated on natural conjugal relationships between the spouses. That being said it cannot be said that there is no remedy available for non-consensual sex or spousal sexual violence. [See provisions of Sections 377 and 498A of IPC.] (xxiv) The acts referred to in Clauses (a) to (d) of Section 375 of the IPC are deemed as sexual acts and, therefore, are not per se illegal and also outside the remit of unnatural offences within the meaning of Section 377. [See provisions of Sections 377 and 498A of IPC.] (xxiv) The acts referred to in Clauses (a) to (d) of Section 375 of the IPC are deemed as sexual acts and, therefore, are not per se illegal and also outside the remit of unnatural offences within the meaning of Section 377. What makes the sexual acts illegal is when they fall under any of the seven circumstances outlined in Section 375 of the IPC. Therefore, consent is not the sole deciding factor. What determines whether or not the sexual act is an offence are the circumstances set forth in Section 375. In other words, circumstances/context determine the nature of consent or its absence. In contradiction, the sexual act between a separated husband and wife whether under a decree of separation or otherwise is premised on the consent of the wife. This distinction is not based on patriarchal consideration but has practical connotations since it is next to impossible to establish the absence of consent given the intimate nature of the relationship between spouses and possibly the absence of eye-witness accounts. It is for this reason that the absence of consensual conjugal relationships is easier to presume in the event of legal or de facto separation. This is also the reason why preliminary enquiry is required to be carried out under Section 198B of the Code to assess if couples live apart while residing under the same roof before booking the husband for an offence under Section 376B of the IPC. Given the age of sexual liberation that we live in, it is not possible to conclude whether the wife was exposed to sexual cruelty or non-consensual sex. In other words, even the presence of bruises or injury cannot automatically lead to an adverse conclusion as they could be merely a manifestation of passion that may subsist between spouses when they indulge in sexual acts. Therefore, State's intervention through the legislative route is required to balance individual dignity and prevent the possibility of abuse of legal remedies which may end up harming an individual's dignity/reputation. (xxv) The argument that consent alone matters and marriage changes nothing in this regard is legally and practically baseless. The marriage is accompanied by obligations that the partners have to bear which inter alia include conjugal expectations, financial obligations and, finally, duty towards progeny. (xxv) The argument that consent alone matters and marriage changes nothing in this regard is legally and practically baseless. The marriage is accompanied by obligations that the partners have to bear which inter alia include conjugal expectations, financial obligations and, finally, duty towards progeny. If these aspects are kept in mind then it cannot be said that the institution of marriage cannot form the basis of sustaining MRE. A careful reading of the language employed in Sections 375 and 376B of the IPC would show that the expression "will" and "consent" although related are not identical which explains the reason for the use of "without consent" in Section 376B of IPC. In a marital relationship, since conjugal expectation is a two-way street, partners may choose to accede to, sexual acts for a variety of reasons and not all of them would necessarily amount to cruelty. In such circumstances, consent is given as a part of spousal intimacy although the will to engage may be absent. If every such incidence is treated in a cut and dried manner as an incidence of marital rape then the only way partners in a marriage may survive would be by drawing up a detailed written agreement and the steps to be observed for courtship or mating or, by creating a detailed evidentiary record of every act of intimacy and/or by inviting a third party to act as a witness- none of which is healthy for the survival of the institution of marriage. This would be a blinkered approach to consent without having regard for the context. (xxvi) Besides the remedies available in IPC, victims of spousal violence can also take recourse to the provisions under the D.V. Act. Section 3 of the D.V. Act defines sexual abuse to include any conduct of sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women. Clearly, this includes non-consensual sex. The contention advanced by the petitioners that the provisions of Section 19(2) of the D.V. Act only provide for civil remedies is belied if one were to have regard to Section 19(2) of the said act. The said provision empowers the magistrate "to pass any other direction which he may deem reasonably necessary to protect or provide for the safety of the aggrieved person". The said provision empowers the magistrate "to pass any other direction which he may deem reasonably necessary to protect or provide for the safety of the aggrieved person". As a matter of practice, the magistrates routinely issue directions for the registration of FIR under Section 498A, 376B and 377 of the IPC. Therefore, to claim that there is an absence of criminal remedies concerning non-consensual sex is incorrect. Sufficiency and adequacy of remedies fall within the ken of the legislature. The difference in punishment to be accorded for spousal sexual violence and other safeguards such as limitation is a conscious legislative call taken having regard to the special status of marital relationships under the IPC and D.V. Act. The legislature's endeavour in treating spousal sexual violence as a specie distinct from rape within the meaning of Section 375 comes through if one looks at MRE and Section 376B from that perspective. The sui generic treatment given to sexual offences committed in marital relationships highlights the differences in what is categorized as an offence and not as contended by the petitioners as to who commits the offence i.e., the offender. In this context, the submission advanced on behalf of the petitioners based on Section 40 of the IPC i.e., that it defines offence in the context of an act that is made punishable and, therefore, does not draw a distinction based on the offender or the context is misconceived. The IPC is replete with provisions where acts committed by different dramatis personae take a different shape or result in a different outcome. Illustratively, the same offence committed by an adult instead of a juvenile results in different outcomes. Likewise, the provisions of the POCSO Act are illustrative of the fact that the IPC is not blind to context, relationships, age or other valid aspects. Therefore, the legislature has consciously avoided using the word rape in the context of spousal relationships, not to protect the spouse but those connected with them, namely, families and the progeny. (xxvii) The marital institution is a legitimate concern of the State. The mores and values of other countries cannot be foisted on our society. The current state of public morality on such issues can only be ascertained by the legislature and not the court. (xxvii) The marital institution is a legitimate concern of the State. The mores and values of other countries cannot be foisted on our society. The current state of public morality on such issues can only be ascertained by the legislature and not the court. Furthermore, every policy disagreement cannot be escalated to the threshold of unconstitutionality and courts cannot be used as instrumentalities to upset policy decisions merely because a certain cross-section of the society disagrees with them. Although disagreements are expected in democracy, not all disagreements demonstrate and/or establish the unconstitutionality of a provision. Critically, the judiciary cannot treat such disagreements with policy as proof of unconstitutionality. The decisions of the legislature must be preserved and defended to the extent possible and wherever necessary through purposive interpretation. (xxviii) The petitioner’s contention that international norms and standards should be taken into account while ruling on the issue at hand ignores the safeguards which are provided, for instance, in the Sexual Offences Act enacted in 2003 by the United Kingdom. Section 1 of the said Act allows the accused to raise a defence that he was under a reasonable belief that sexual intercourse with the alleged victim was consensual. Likewise, Section 23 of the very same Act exempts spousal and civil partners from the applicability of Sections 16 to 19 which relate to abuse of a position of trust. The said Act also spells out evidentiary standards and circumstances in which conclusive presumptions may be drawn. The Act envisages Standard Operating Procedures for the prosecution of cases concerning an allegation of rape. The Act is gender-neutral. (xxix) Likewise, the reliance placed by the petitioners on the judgment of the European Court of Human Rights (ECHR) in C.R. v. United Kingdom, (1995) 21 EHRR 363 misses the point that it concerned an estranged couple, a situation which is squarely covered under Section 376B of the IPC. (xxx) Contrary to the impression given by the petitioners, in Nepal, a petition similar to the ones filed in this court was quashed. Nepal has brought in several procedural safeguards when the law on spousal sexual violence was finally introduced by the legislature which included enunciation of legal proceedings within 35 days of the commission of the alleged offence. (xxxi) Importantly, Nepal's legislation is also gender-neutral. Nepal has brought in several procedural safeguards when the law on spousal sexual violence was finally introduced by the legislature which included enunciation of legal proceedings within 35 days of the commission of the alleged offence. (xxxi) Importantly, Nepal's legislation is also gender-neutral. The different States of the United States of America have taken varying positions, for instance: in the State of Maryland, spousal defence is recognised. Similarly, Connecticut treats spouses differently from strangers. Likewise, the State of Idaho recognises special circumstances in which a spouse/partner may be 6 In short “CR v. UK” prosecuted. Safeguards have been introduced by other States such as Nevada, Rhode Island, Oklahoma, South Carolina and Virginia. None of the international instruments cited by the petitioners envisage the creation of offences by the judiciary and critically they address the issue of sexual dignity and violence in gender-neutral terms. (xxxii) In sum, MWT does not oppose the recognition of spousal sexual violence. Its position is spousal sexual violence stands already criminalised and, therefore, the grievance concerning inadequacy can only be addressed by the legislature and not the judiciary. Inadequacy or perceived inadequacy is a matter which falls within the ken of the legislature and cannot become a ground for a constitutional challenge. It is, according to MWT, possible to protect individual dignity and marital institution without sacrificing one for the other. Gender-neutral approach to such issues should be consistent with the calls for gender equity. 10. I must note that the arguments that Mr Sai Deepak advanced, covered to a very great extent the submissions which were made in the opening by Mr Amit Lakhani and Mr Ritwik Bisaria on behalf of MWT. To avoid prolixity, their arguments are not specifically recorded herein. 11. Mr R.K. Kapoor, who appeared for Hridaya, the other intervenor, made submissions that are more or less in line with the arguments advanced by Mr Sai Deepak on behalf of MWT. Briefly, Mr Kapoor’s submissions can be paraphrased as follows : (i) Retention of MRE on the statute does not involve a violation of Article 14 of the Constitution. In 1983 when Section 375 of the IPC was amended by the Parliament only the expression "Of rape" was substituted with "Sexual Offences". The substance of Section 375 remained intact. (ii) Despite several amendments made to the IPC and other related statutes, MRE remained undisturbed. In 1983 when Section 375 of the IPC was amended by the Parliament only the expression "Of rape" was substituted with "Sexual Offences". The substance of Section 375 remained intact. (ii) Despite several amendments made to the IPC and other related statutes, MRE remained undisturbed. Thus, the wisdom or the motive of the Parliament cannot be subjected to judicial scrutiny. The courts are precluded from legislating. Courts only interpret the law, in case the law is misused, it is for the legislature to amend, modify or repeal the law if deemed necessary. In this context, reference was made to the 172nd report of the Law Commission of India, the Draft Criminal Law (Amendment) Bill, 2012, the report of Justice J.S. Verma Committee [hereafter referred to as “Justice Verma Committee Report”] and the 167th report of the Parliamentary Standing Committee on the Criminal Law (Amendment) Bill, 2012 presented to the Rajya Sabha on March 1, 2013. Besides this reference was also made to the extracts from the judgment rendered by the Supreme Court in (i) Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184 at paragraph 409, and (ii) Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281 at paragraph 16. (iii) Section 376B and MRE/ Exception 2 to Section 375 of IPC represent persons who fall into two different classes. On account of judicial separation, husband and wife are physically and mentally set apart and, therefore, the wife's consent for a sexual relationship stands withdrawn from the date of separation. Therefore, it cannot be said that retention of MRE would amount to a violation of Article 14. (iv) Article 14 permits reasonable classification based on nexus and object that is sought to be achieved by the legislature. The 167th report of the Parliamentary Standing Committee inter alia states "..... It was, therefore, felt if the marital rape is brought under the law, the entire family system will be under great stress .....". The Courts cannot examine the adequacy of the objects sought to be achieved or the motive of the legislature in passing a statute or retaining a provision so long there is some object behind it. In case, MRE is struck down, husbands who are not separated would be in a worse position than those who are separated from their wives and indulge in non-consensual sexual acts. In case, MRE is struck down, husbands who are not separated would be in a worse position than those who are separated from their wives and indulge in non-consensual sexual acts. Such husbands would be subjected to harsher punishment than those who are booked under Section 376B of the IPC. Husbands, who are not separated from their spouses if found guilty of the offence of rape under Section 376 of the IPC, will be amenable to imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life. Whereas punishment by way of imprisonment provided under Section 376B is minimum of 2 years but may extend to 7 years. In this behalf, reference was also made to Section 376(2)(h) and 376(2)(n) concerning rape committed on a woman who is known to be pregnant or repeated acts of rape committed on the same woman. These provisions would demonstrate that striking down MRE would lead to harsher consequences for the husband as compared to those husbands who are separated from their spouse. Furthermore, our attention was also drawn to Section 114A of the Evidence Act to demonstrate the anomaly that would arise vis-a-vis the husbands who remained in marriage and those who are separated from their wives. (v) Therefore, Section 376 of the IPC concerns offences involving persons who fall in a separate and distinct class that cannot be tampered with by the court. [See Sant Lal Bharti v. State of Punjab, (1988) 1 SCC 366 and H.P. Gupta & Anr. v. Union of India & Ors., (2002) 10 SCC 658 .] (vi) Thus, the issue concerning punishment that should be imposed on husbands who are not separated from their wives and are held guilty of the offence(s) described under Section 375 of the IPC needs legislative intervention. It is not the position of the impleaded respondent that if a husband indulges in a sexual act without the consent of the wife, he should go scot-free; what is objected to is subjecting him to a punishment harsher than that which is provided for separated husbands under Section 376B of the IPC. It is not the position of the impleaded respondent that if a husband indulges in a sexual act without the consent of the wife, he should go scot-free; what is objected to is subjecting him to a punishment harsher than that which is provided for separated husbands under Section 376B of the IPC. The Parliamentary Standing Committee in its 167th report, therefore, rightly observed the following in paragraph 5.9.1 : "...The Committee felt that if a woman is aggrieved by the acts of her husband, there are other means of approaching the court....." It would have to be presumed that the Parliament, at that juncture, was aware that the husband could be punished under the D.V. Act. In this context, reference was made to Section 3 read with Explanation I of the D.V. Act. The petitioners' submission which tantamount to contending that MRE can be struck down because of the inadequacy of punishment provided in the D.V. Act is untenable because Section 376B of the IPC also provides for a lesser punishment that is not under challenge. (vii) It is important to note that the concerned magistrate under Section 31 of the D.V. Act is entitled to impose a penalty by way of imprisonment and fine in case the husband commits a breach of a protection order. Furthermore, the magistrate is also empowered to frame charges under Section 498A and other provisions of IPC in case offences committed by the husband are brought to his/her notice. As per the provisions of Section 32 of the D.V. Act, such an offence is cognizable and non-bailable. (viii) India is not a "Hindu" State, unlike Nepal. Although there are several statutes dealing with personal laws concerning Hindus, Muslims, Sikhs, Christians, Jains and others, the provisions of IPC apply to all. MRE benefits all irrespective of their faith and identity. In the same vein, reference was made to the Special Marriage Act, 1954 [in short “SMA”] to establish that divorce can be sought on the ground of cruelty. Reference was also made to Section 2(iv) of the Dissolution of Muslim Marriage Act, 1939 which inter alia furnishes a ground for divorce in case a husband fails to perform his marital obligations, albeit without reasonable cause for three years. Reference was also made to Section 2(iv) of the Dissolution of Muslim Marriage Act, 1939 which inter alia furnishes a ground for divorce in case a husband fails to perform his marital obligations, albeit without reasonable cause for three years. It was contended that likewise, where a wife denies conjugal rights to a husband, it has been treated as cruelty and a ground for seeking divorce by the husband. [See Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21 .] (ix) The courts in India ought not to apply western concepts. The concept which is in vogue in western countries cannot form the basis for striking down a statutory provision made by Parliament having regard to the needs of its people. Therefore, one cannot plead that there has been a violation of Article 14 on the ground that while a wife located in a western country can file a complaint about sexual abuse, the same remedy is not available to a wife located in India. [See Sant Lal Bharti.] (x) In case MRE is struck down, it is likely to be misused as has happened in respect of cases lodged under Section 498A of the IPC. [See Sushil Kumar Sharma.] (xi) The courts cannot extend the meaning given to a word or expression used in a statute. Therefore, the expression "relative" or "trust" used in Section 376(2)(f) of the IPC cannot be extended to include a husband. (xii) MRE has been retained on the statute to protect the "institution of marriage". An individual is subjected to punishment for committing a crime as it impacts the society at large which needs to be protected from the pernicious effect of such crime. Thus, the legislative policy of not punishing an offence committed by a husband upon his wife which otherwise would fall within the purview of Section 375 is taken out of its realm by Exception 2 appended to the said section only to protect the society i.e., the institution of marriage. That marriage is a social institution that has social, economic, cultural and religious ramifications, has been accepted by courts [See Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702.] (xiii) MRE has the potential of destroying the institution of marriage. [See 167th report of the Parliamentary Standing Committee.] The endeavour to save the institution of marriage also finds recognition in various statutes including the Hindu Marriage Act, 1955 [in short “HMA”]. [See 167th report of the Parliamentary Standing Committee.] The endeavour to save the institution of marriage also finds recognition in various statutes including the Hindu Marriage Act, 1955 [in short “HMA”]. In this context, reference was made to Section 13, 13B, 14, 13(1A) & 16 of the HMA to show there is an endeavour to save the institution of marriage. A petition of divorce cannot be filed unless one year has elapsed since the date of marriage. Likewise, a divorce petition based on mutual consent cannot be instituted unless it is shown that parties have been living separately for one year or more. Furthermore, under Section 13(1A), a decree for divorce can only be filed after parties have undergone judicial separation for one year or a decree of restitution of conjugal rights remains unsatisfied for the said period. Section 16 seeks to provide legitimacy to children who are born from a void or voidable marriage. Thus, the institution of marriage is important not only for the couple involved but also for the family which includes children and parents. [See Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270.] (xiv) The position of a sex worker cannot be compared with persons bound by marriage. The perpetrator or the abuser cannot claim restitution of conjugal rights against a sex worker and correspondingly a sex worker cannot claim maintenance against the perpetrator or abuser. There is no emotional relationship between the sex worker and the perpetrator whereas the relationship between the husband and wife is a package comprising mutual rights and obligations which are social, psychological, religious and economic. It cannot be limited to just one event of consent in the context of sexual relationships. (xv) Same punishments cannot be provided for dissimilar situations/acts. [See Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors., (1974) 4 SCC 222 .] MRE presents a case of reasonable classification and hence cannot be struck down under Article 14 of the Constitution. Thus, even if a violation of Article 21 of the Constitution is established, reasonable classification is permissible for providing different punishments. (xvi) Retention of MRE on the statute does not indicate that the Parliament justifies the act. It only establishes that it is not deemed fit to be punished under Section 376 of the IPC. Thus, even if a violation of Article 21 of the Constitution is established, reasonable classification is permissible for providing different punishments. (xvi) Retention of MRE on the statute does not indicate that the Parliament justifies the act. It only establishes that it is not deemed fit to be punished under Section 376 of the IPC. Therefore, if the husband were to use force or intimidation in committing marital rape, the wife could trigger other provisions available in IPC as also in various other statutes to have her grievance redressed. [See paragraph 5.9.1 of the 167 the report of the Parliamentary Standing Committee and also see Sections 323 to 326, 326A, 326B, 328, 336, 352, 354, 354A, 354B, 354C, 355, 498A, 304B, 506 and 509 of IPC as also provisions of the D.V. Act.] (xvii) Forced sexual intercourse between a husband and wife cannot be treated as rape. At worst, it can be treated as sexual abuse as is clear upon perusal of the definition of "cruelty" found in Section 3 of the D.V. Act. (xviii) A wife cannot prescribe a particular punishment that can be imposed on the husband "to satisfy her ego". The only difference between Section 376 of the IPC and the D.V. Act is with regard to the quantum of punishment, although, the act of sexual abuse is an offence under both statutes. The object and purpose of retaining MRE cannot, thus, be said to be arbitrary or violative of Articles 14, 15 or 21 of the Constitution. It is for this reason that under the Code, a different procedure has been provided vis-a- vis offences relating to marriage. [See Section 198, 198A and 198B of the Code, and Sections 113A and 113B of the Evidence Act.] For other offences as well, there is a provision under the Evidence Act for drawing presumption. [See Sections 111A and 114A of the said Act.] Likewise, it cannot be said that since rape is a heinous crime, Parliament should have provided the death penalty in all cases relating to such crime. Illustratively, reference was made to Section 376A, 376AB, 376DB and 376E of the IPC [which provide for the death penalty], as against the offences which are brought within the purview of Sections 376(2) and 376D. Illustratively, reference was made to Section 376A, 376AB, 376DB and 376E of the IPC [which provide for the death penalty], as against the offences which are brought within the purview of Sections 376(2) and 376D. (xix) The importance of conjugal rights in marriage can be ascertained by having regard to Section 9 of the HMA which concerns restitution of conjugal rights. The remedy under this provision is available to both spouses and denial of sex by either spouse is construed as cruelty and, thus, is available as a ground for divorce. [See Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 SCC 21 .] Legislative wisdom cannot be doubted on the ground of flawed classification. In this context, the example was given of offenders to whom the provisions of the Probation of Offenders Act, 1940 or Section 360 of the Code were available. Likewise, it was contended that offences that were punishable with imprisonment for a longer period such as offences falling under Section 420 and 494 of the IPC could be compounded under Section 320 of the Code while others with a shorter duration of punishment, for example, an offence punishable under Section 353 of IPC which was not compoundable. Reference was made to Section 494 of the IPC which concerned an offence of a spouse entering matrimony while the other spouse was alive. It was submitted that although the punishment could go up to 7 years, the same was compoundable. These examples were cited to demonstrate the latitude that the Parliament enjoyed in providing different punishments for different offences. Similarly, reference was also made to Sections 302, 303, 304, 304A and 304B of the IPC. It was stated that, although the death of a victim is a foundation for invoking, both, Section 304A and 302 of the IPC, the punishment that can be awarded under the two provisions may vary. The quantum of punishment can vary depending upon the relationship between the parties. The powers of judicial review conferred on the court are limited. While exercising the power of judicial review, the court cannot substitute its own opinion for the wisdom of the legislature. The quantum of punishment can vary depending upon the relationship between the parties. The powers of judicial review conferred on the court are limited. While exercising the power of judicial review, the court cannot substitute its own opinion for the wisdom of the legislature. [See K.S. Puttaswamy v. Union of India, (2017) 10 SCC 19.] (xx) It cannot be said that if one organ i.e., the legislature gives protection to the citizens by engrafting in the statute MRE, the other organ, which is the judiciary, can take away the protection by striking down the exception and, thus, creating an offence. It is a settled law that what cannot be done directly can also not be done indirectly. In Joseph Shine v. Union of India, (2019) 3 SCC 39 and Navtej Singh Johar, the court de-criminalized acts that constituted offences under Section 497 and 377 of the IPC. Therefore, those judgments are distinguishable. Similarly, in K.S. Puttaswamy case, the court extended the meaning of Article 21 by confirming the right of privacy of citizens, it did not criminalize any act. (xxi) The Independent Thought only read down MRE/Exception 2 to Section 375 of IPC but did not create an offence. The Independent Thought is a binding judgment for the issue raised and adjudicated in that case and, therefore, has no application to the issues obtaining in the instant matters. (xxii) The power of the High Court under Article 226 cannot be equated with the power available to the Supreme Court under Articles 32, 141 and 142 of the Constitution. (xxiii) The Supreme Court, via the decision rendered in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 , endeavoured to fill up the legislative vacuum in the area concerning sexual harassment of women in workplaces while exercising powers under Article 32 of the Constitution. In that case, the court had emphasized that their decision could be treated as law declared under Article 141 of the Constitution. The courts can make recommendations to the Parliament, if changes are required in the law. [See Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517 .] Arguments advanced for striking down the impugned provisions 12. In support of this proposition, submissions were advanced by Mr Colin Gonsalves, Ms Karuna Nundy and the two amici appointed by this court i.e., Mr Rajshekhar Rao and Ms Rebecca John, Sr. Advocates. 13. [See Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517 .] Arguments advanced for striking down the impugned provisions 12. In support of this proposition, submissions were advanced by Mr Colin Gonsalves, Ms Karuna Nundy and the two amici appointed by this court i.e., Mr Rajshekhar Rao and Ms Rebecca John, Sr. Advocates. 13. Mr Gonsalves, broadly, made the following submissions : 13.1. He began by alluding to the journey that the matters had taken since 2015 and in this behalf adverted to the fact that the Union of India (UOI) had filed its counter-affidavit on 25.05.2016 in W.P.(C) No. 284/2015 and that pleadings were completed on 29.08.2016. Based on the record, he stated that arguments in the captioned matters were heard by the earlier bench at length for 26 days between 29.08.2017 and 14.08.2018. He also adverted to the fact that the present bench had taken up the matter on 15.12.2021 (when an early hearing application was allowed) and, consequently, commenced hearing in the matter on 07.01.2022 on a daily basis. 13.2. Mr Gonsalves contended that UOI's written submissions dated 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. 14. Since Mr Gonsalves was representing the petitioner in W.P.(C)No. 5858/2017 [hereafter referred to as “Khushboo Saifi case”], he briefly adverted to the facts arising in the said matter. 14.1. In this context, it was pointed out that Ms Khushboo Saifi was a married woman of 27 years of age. She had got into an arranged marriage with, one, Mr Aizaz Saifi on 04.12.2016 and, at that juncture, she was pursuing a course in Bachelor of Arts (B.A.) from Indira Gandhi National Open University. It was pointed out that, at the time of marriage, she was in the final year of the said course. 14.2. She had got into an arranged marriage with, one, Mr Aizaz Saifi on 04.12.2016 and, at that juncture, she was pursuing a course in Bachelor of Arts (B.A.) from Indira Gandhi National Open University. It was pointed out that, at the time of marriage, she was in the final year of the said course. 14.2. Mr Gonsalves drew our attention to the assertions made in the writ petition that Mr Aizaz, at the time when he entered into matrimony with Ms Khushboo Saifi, was already involved in an extra-marital relationship with another woman, who, he eventually married on 16.04.2017 without providing any maintenance to Ms Saifi. The assertions concerning ill-treatment meted out to Ms Saifi by her husband Mr Aizaz including forced sexual intercourse on multiple occasions without having regard to her physical well-being were also referred to in the course of arguments. The averment made by Ms Saifi that she was raped by her husband i.e., Mr Aizaz was also brought to our notice. It was emphasized that Ms Saifi was not provided medical aid either by her husband or by her in-laws and that she was not allowed to use her mobile phone. The only way that she could communicate with the outside world was through her husband's phone and even these conversations were recorded. Mr Gonsalves pointed out that it is in these circumstances that she approached an NGO for shelter, which led to Ms Saifi filing an FIR with Crime Against Women (CAW) Cell at South- East District, Srinivas Puri, Delhi, on 12.06.2017. 15. Besides facts involving Ms Saifi, Mr Gonsalves also made the following general submissions. Mr Gonsalves prefaced his arguments with the issues that, according to him, arose for consideration in the instant cases, which, in effect, were also the broad contours of his submissions. 15.1. Firstly, according to him, MRE was manifestly arbitrary as it sought to decriminalise a crime as heinous as rape. 15.2. Secondly, Section 376B of the IPC was unconstitutional since it created a distinction between husbands, who are not separated from their wives and those who are separated by bringing the latter class of husbands within the definition of rape in respect of forced sexual intercourse under Section 375 and, at the same time, assigned lesser punishment for such a crime. 15.3. 15.3. Thirdly, rape is a heinous crime that has multiple consequences including mental trauma and severe adverse medical effects. It would be arbitrary to decriminalize marital rape on the ground that by entering into matrimony, a woman consents to a continued sexual relationship from which she cannot retract. 15.4. Fourthly, there is no rationale for distinguishing between married and unmarried men who subject women to forced sexual intercourse. 15.5. Fifthly, marriage cannot be a relevant consideration in concluding whether a criminal offence has been committed or not. 15.6. Sixthly, the rape of a woman by her husband was unconstitutional, right from inception and is being put to test only now. 15.7. Seventhly, in any event, having regard to the passage of time and a better understanding of gender equality, MRE should not be permitted to remain on the statute. 15.8. Eighthly, the distinction sought to be drawn between western and Indian values insofar as marital rape is concerned, is untenable in law. There is no truth in the submission that Indian society is somehow superior to western societies and that marital rape is not known in India. 15.9. Ninthly, this court should not desist from examining the constitutionality of the impugned provisions only because it is impossible to prove the occurrence of marital rape as at times it happens within the confines of a household. 15.10. Tenthly, this court should also not desist from examining the constitutionality of MRE only because some women may file a false complaint against their husbands. 16. Elaborating upon the aforementioned submissions, Mr Gonsalves submitted that the distinction drawn concerning the offence of rape between those who are married as against those persons who are unmarried, was unmerited. The classification, according to him, had no rational nexus to the object sought to be achieved if the legislative policy on rape is to be taken forward. Insofar as the constitutional courts are concerned, they have to only examine whether the impugned provisions stand the test of Articles 14, 15 and 21 of the Constitution. Therefore, once such a declaration is made, matters concerning proof and false complaints could be examined in specific cases by the trial courts. 16.1. Therefore, the circumstances in which the conduct of the husband would amount to ‘coercion’ or ‘consent’ would be examined by the trial courts in the given fact situation. Therefore, once such a declaration is made, matters concerning proof and false complaints could be examined in specific cases by the trial courts. 16.1. Therefore, the circumstances in which the conduct of the husband would amount to ‘coercion’ or ‘consent’ would be examined by the trial courts in the given fact situation. Evidence led by the prosecution and defence will determine the outcome of cases that are dealt with by the trial courts. Adjudication of cases of marital rape and non-marital rape has been carried out in various jurisdictions and, therefore, there are legal precedents available to the trial courts to deal with such issues. These issues, though, should not come in the way of a constitutional court to examine the vires of MRE. 17. The argument that in a marriage, there is a presumption in favour of consensual sex which is not present in forced sexual intercourse outside marriage is flawed. The argument is founded on the theory that husbands have a greater degree of laxity available to them with regard to consent when engaging in sex with their wives. That this argument is untenable in law can be tested against the plight of a sex worker. The Supreme Court has decried such an attempt by holding that even a sex worker has a right to refuse forced sexual intercourse. [See State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 .] 18. The submission advanced that forced sex in marriage cannot lead to a husband being sentenced to imprisonment for a term spanning between 10 years and life; the insinuation being that the sentence should be much less, is flawed. This is also an argument put forth to defend the retention of MRE on the statute. These submissions are premised on an erroneous understanding of the role of constitutional courts. The court cannot resolve all complications that concern sentencing; a job entrusted to the Parliament and, those which emerge out of a particular fact situation. All that is required of the court, at this juncture, is to test the vires of the impugned provisions against the provisions of the Constitution. Once such a step is taken, it is open for the Parliament to step in and take the necessary next steps in the matter which includes whether a husband found guilty of rape should be visited with a lesser punishment. 19. Once such a step is taken, it is open for the Parliament to step in and take the necessary next steps in the matter which includes whether a husband found guilty of rape should be visited with a lesser punishment. 19. It is important to note that both the courts and parliament have in the past dealt with new and complex issues that have arisen in criminal law. By way of example, reference was made to the guidelines issued by the Supreme Court that were required to be adhered to by the trial courts in cases concerning sexual abuse of children and those related to children involving domestic violence [See Sakshi v. Union of India, (2004) 5 SCC 518 and Rajnesh v. Neha, (2021) 2 SCC 324 .] 20. Thus, the elimination of MRE is the first step that is required to be taken. 20.1. Deflating a grave and heinous offence such as rape is untenable. The argument loses sight of the fact that the penology behind punishment is concerned not only with the incarceration of the convict but also with stigmatizing the conduct which does not meet with the approval of the society. Since rape is a grave and heinous offence, society at large should know about the conduct of the convict. Therefore, the submission that other provisions of the IPC provide for equivalent punishment for sexual offences, and hence, MRE should remain on the statute is untenable in law. 21. Equally, the argument that misuse of law should be a reason to desist from striking down MRE should be rejected outrightly by the court. How, misuse of the law needs to be dealt with is an aspect which would require the intervention of the legislature [See Sushil Kumar Sharma.] 22. The submission advanced that the observations made in the Independent Thought cannot be relied upon is erroneous; once a judgment is delivered on a given set of facts it is not open to a court to state that it cannot be relied on as a precedent. A judgment once delivered belongs to the world and thus, such observations cannot bind the judges, lawyers and members of the public in other cases. If there is parity, then, litigants should be free to apply the ratio of an earlier judgment notwithstanding such observations. A judgment once delivered belongs to the world and thus, such observations cannot bind the judges, lawyers and members of the public in other cases. If there is parity, then, litigants should be free to apply the ratio of an earlier judgment notwithstanding such observations. [See Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 ; at paragraph 37 and D. Navinchandra & Co. v. Union of India, 1989 SCC OnLine Bom 485; at paragraph 37.] 23. The submission that in marriage there is an “expectation of sex” i.e., a right to have sex absent consent would amount to resurrecting the Ghost of Lord Hale. Marriage merely gives social sanction to sex between adults. Procreation that follows such sexual union also receives acceptability from society. Therefore, a husband may “expect sex” but from there to argue that he would have the right to demand sex from a woman merely because she is in marriage with him, bereft of love, for satisfying carnal desire and procreation, is morally and legally untenable as it institutionalizes violence within the family. It is, therefore, the duty of a constitutional court to end such institutional violence against women. It is quite possible that even if this court were to nullify MRE, women victims may not lodge complaints and may suffer silently as social change does not occur automatically with the alteration in law alone. Might be said, it would be the first important step towards a real change and education of women in respect of their rights over their own bodies. 24. Ms Karuna Nundy, who appears on behalf of the petitioners, who have instituted W.P.(C) No. 284/2015 (i.e., RIT Foundation) and W.P.(C) No. 6024/2017 [i.e., All India Democratic Women's Association (AIDWA)] alluded to the work carried out by these organizations to promote social and gender equality in India across classes, castes and communities. 24.1. Ms Nundy highlighted the fact that the challenge laid to MRE on the ground that it was unconstitutional as a logical and inevitable corollary has led the petitioners to challenge Section 376B of the IPC and Section 198B of the Code. 25. In this context, the submission made was until marital rape is declared explicitly to be an offence, it will continue to be condoned. It is a moral right of a woman to refuse unwanted, forcible sexual intercourse. 25. In this context, the submission made was until marital rape is declared explicitly to be an offence, it will continue to be condoned. It is a moral right of a woman to refuse unwanted, forcible sexual intercourse. This case is about respecting the right of a wife to say “no” to sexual intercourse and recognizing that marriage is no longer a universal licence to ignore consent. 26. The Constitution is transformative as citizens are transforming. Social transformation should ensure that citizens' right to justice, liberty, equality and fraternity is protected. Citizens' rights travel along the constitutional path because judges' personal and social moralities travel to the destination of constitutional morality. Substantive equality is dependent on the recognition of historical wrongs and discovering remedies for curing the wrong. The right of a wife to say “yes” to sexual intercourse includes the corollary i.e. the right to say “no” [See S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096; and Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1 .] 27. The Independent Thought case is a binding authority for several propositions including aspects concerning MRE. This judgment is also a precedent that is relied upon for the proposition that Section 376B of the IPC and 198B of the Code create a separate and a more lenient penal regime when a separated husband subjects his wife to forceful sexual intercourse. In this regard, it is required to be noticed that initially, this court had dismissed the challenge raised to MRE because the petition filed by Independent Thought at the relevant time was pending adjudication before the Supreme Court. It is when Mr Gaurav Aggarwal, Advocate, for Independent Thought clarified to this court that the challenge before the Supreme Court was confined to married girl children aged between 15 to 18 years, that these petitions were taken up for hearing. [See order dated 08.09.2017 passed by this court.] 28. The ratio decidendi of the Independent Thought case would apply while testing the constitutional validity of MRE as a whole. The propositions laid down by the Supreme Court in Independent Thought would also apply to all women i.e., wives who are aged 18 years and above. [See order dated 08.09.2017 passed by this court.] 28. The ratio decidendi of the Independent Thought case would apply while testing the constitutional validity of MRE as a whole. The propositions laid down by the Supreme Court in Independent Thought would also apply to all women i.e., wives who are aged 18 years and above. In support of this proposition, Ms Nundy relied upon the inversion test evolved by Professor Eugen Wambaugh (Harvard Law School); a test which was applied by the Supreme Court in a decision rendered in State of Gujarat v. Utility Users' Welfare Association, (2018) 6 SCC 21 ; at paragraph 113. This test was also cited with approval by a three-judge bench of the Supreme Court in Nevada Properties (P) Ltd. v. State of Maharashtra, (2019) 20 SCC 119 ; at paragraph 13. 29. Applying the inversion test, it was submitted that Independent Thought case is an authority for the following propositions. (i) A woman cannot be treated as a commodity. She has every right to say no to sexual intercourse with her husband. [See paragraph 66 at page 840.] (ii) Marriage to a victim does not make a rapist a non-rapist. [See paragraph 75 at page 843.] (iii) MRE creates an artificial distinction between married and unmarried women. [See paragraph 79.3 at page 844.] (iv) Woman is not subordinate to or a property of a man. [See paragraph 84 at page 846.] (v) The view that criminalizing marital rape would destroy the institution of marriage is unacceptable since marriage is not an institution but personal - nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable. [See paragraph 92 at page 849.] (vi) MRE is discriminatory as it creates an anomalous situation where the husband can be prosecuted for lesser offences but not rape. [See paragraph 186 at page 883.] (vii) Removing MRE will not create a new offence since it already exists in the main part of IPC. [See paragraphs 190 to 194 at pages 884-885.] 30. Each of the aforesaid propositions laid down in the Independent Thought case is binding on this court; an aspect which comes to fore if the inversion test is applied. In other words, if each of these propositions were to be reversed, the court could not have reached the conclusion that it did in the Independent Thought case. Each of the aforesaid propositions laid down in the Independent Thought case is binding on this court; an aspect which comes to fore if the inversion test is applied. In other words, if each of these propositions were to be reversed, the court could not have reached the conclusion that it did in the Independent Thought case. Furthermore, even obiter as a matter of judicial propriety would be binding on the high court. [See Peerless General Finance and Investment Co. Ltd. v. Commissioner of Income Tax, 2019 SCC OnLine SC 851 at paragraph 13.] 31. There is no presumption of constitutionality in respect of a pre-constitutional statute like the IPC, even though it has been adopted and continued to remain in force after the Constitution was brought into force. Since MRE is a pre-constitutional provision, parliament’s failure to remove it is a “neutral fact”. [See Joseph Shine at paragraph 270 and Navtej Singh ; Johar at paragraphs 359-364.] 32. As per Article 13, if a provision is found to be unconstitutional, the courts must act; holding that the matter is within the ken of the legislature is not a correct approach. [See Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343 , paragraphs 48 to 50; and Independent Thought, paragraphs 166 and 167.] 33. The number of people affected or harmed by the impugned provisions cannot disentitle others from seeking relief from this court as this would be an irrelevant consideration while deciding upon the rights of parties. [See Shayara Bano, paragraphs 56 and 57 and Navtej Singh Johar, paragraph 367.] 34. Although, while ruling upon economic policies and statutes having financial implications, the court should employ restraint, this does not hold good for statutes dealing with civil liberties or those which infringe fundamental rights. Qua such statutes, the courts should play the role of activist. [See Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720 at paragraph 88, and Govt. of A.P. v. G. Jaya Prasad Rao, (2007) 11 SCC 528 .] 35. MRE violates Article 14 of the constitution. It creates three classes of victims and perpetrators though the act is similar i.e., forced sexual intercourse. 35.1. The MRE is violative of Article 14 as it creates an unreasonable, discriminatory and manifestly arbitrary classification. of A.P. v. G. Jaya Prasad Rao, (2007) 11 SCC 528 .] 35. MRE violates Article 14 of the constitution. It creates three classes of victims and perpetrators though the act is similar i.e., forced sexual intercourse. 35.1. The MRE is violative of Article 14 as it creates an unreasonable, discriminatory and manifestly arbitrary classification. Merely satisfying the test of intelligible differentia is not sufficient to pass muster of Article 14. To pass muster of Article 14, the impugned provisions must fall within the scope of the following facets of Article 14: there should be intelligible 14 In short “Laxmi Devi” differentia between classes, and there must be a rational nexus with the legitimate objects sought to be achieved. 36. MRE suffers from irrationality and manifest arbitrariness as it provides immunity from prosecution for rape to a man who has forcible sex with his wife but not to a man who has forcible sex with a woman who is not his wife. Furthermore, Section 198B of the Code and Section 376B of IPC provides qualified immunity; in the form of an increased threshold for cognizance and a lesser sentence in respect of a man separated from his wife. Such privilege of purported sanctity of an institution over the rights of individuals is manifestly arbitrary and is violative of Article 14. The mere existence of purported logic without a determining principle is not sufficient to protect the impugned provisions from being declared manifestly arbitrary. [See State of Bihar v. Brahmputra Infrastructure Limited, (2018) 17 SCC 444 at paragraph 7.] 37. Moreover, if the purported rationale for retaining the impugned provisions has outlived its purpose or does not square with constitutional morality, the same should be declared manifestly arbitrary. [See Joseph Shine at paragraph 102.] 38. Provisions of law that postulate institution of marriage that subverts equality is manifestly arbitrary and bad in law. [See Joseph Shine at paragraphs 168, 169 and 182.] 39. The argument for retaining MRE is not supported by any determining principle. Those who support this view have not been able to establish how removing MRE is bad for marriage. There is no discussion found in legislative debates to support this view. There is also no reasoned dissent qua the recommendations made in this behalf by Justice Verma Committee Report. The argument for retaining MRE is not supported by any determining principle. Those who support this view have not been able to establish how removing MRE is bad for marriage. There is no discussion found in legislative debates to support this view. There is also no reasoned dissent qua the recommendations made in this behalf by Justice Verma Committee Report. Therefore, the argument put forth that MRE finds mention in the statute to protect the institution of marriage is not an adequate determining principle. MRE is archaic and is based on an outdated notion of marital relationships that has no place in a just constitutional order. 40. Although, there can be no doubt that there is an intelligible differentia between married, separated and unmarried persons, what this court is required to examine is whether the differentia between married and unmarried couples has a rational nexus with the object sought to be achieved, which is, to protect forced sexual intercourse within marriage. Therefore, if MRE is unconstitutional, whether qualified immunity extended to separated husbands under Sections 198B and 376B of the IPC would survive. It is well established that the object of a statute determines its constitutionality. [See Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500 at paragraph 26 and Subramaniam Swamy v. CBI, (2014) 8 SCC 682 at paragraph 58.] 41. Pre-constitutional object of MRE was to protect the conjugal rights of husbands after the enactment of the constitution has undergone a change. The object of rape laws as set out in post-constitutional amendments to Sections 375 and 376 of IPC has been to protect women from violence and to secure for them sexual autonomy and right to bodily integrity. The object of post-constitutional rape laws is briefly this: "no man should be able to force a woman to have sex with him without her consent". 42. MRE is flawed for the following reasons : 42.1. It nullifies the object of the main provision and, hence, must fail. The object of the main provision is to criminalize rape. The purported defence put forward for retaining MRE i.e., protection of conjugal rights in the institution of marriage would destroy the object of the main provision. [See S. Sundaram Pillai v & Ors. v. V.R. Pattabiraman & Ors., (1985) 1 SCC 591 at paragraph 27 and Director of Education (Secondary) & Anr. The purported defence put forward for retaining MRE i.e., protection of conjugal rights in the institution of marriage would destroy the object of the main provision. [See S. Sundaram Pillai v & Ors. v. V.R. Pattabiraman & Ors., (1985) 1 SCC 591 at paragraph 27 and Director of Education (Secondary) & Anr. v. Pushpendra Kumar & Ors, (1998) 5 SCC 192 at paragraph 8.] 42.2. It places the privacy of marriage as an object above the privacy of the individual in the marriage. Parliamentary debates which make a vague reference to preserving the institution of marriage as justification for retaining MRE is a "neutral fact". The courts need to examine whether this neutral fact should be held to be subsidiary and directly contrary to the explicit object of the legislation. The attempt to privilege the institution of marriage over the rights conferred on an individual i.e., the victim-wife under Article 21 of the Constitution can only be regarded as an unconstitutional object. An individual victim - wife’s right not to be raped cannot be held hostage to an imposed conception of marriage. [See Joseph Shine, at paragraph 192.] And, therefore, while seeking to secure a victimwife's rights under Article 21 of the Constitution, the court can scrutinize the "intimate personal sphere of marital relationships". [See Joseph Shine, at paragraph 218.] 42.3. The purported protection of conjugal rights by not penalizing forced sex within marriage is not a legitimate object post-adoption of the Constitution as it does not align with the understanding of conjugal rights as it obtains today. [See John Vallamattom at paragraph 36.] Conjugal rights end where bodily integrity begins while enforcing a decree of restitution of conjugal rights between a married couple. Court can direct either party i.e., husband or wife to cohabit but it cannot force them to have sexual intercourse. Thus, refusal of either party to cohabit can only lead to attachment of property or imprisonment in civil prison. A spouse can even obtain a divorce in case of non-compliance with the decree in his/her favour on the ground of cruelty. Therefore, by denying a spouse sex, a person's property and freedom may be at risk but not his/her bodily integrity. A spouse can even obtain a divorce in case of non-compliance with the decree in his/her favour on the ground of cruelty. Therefore, by denying a spouse sex, a person's property and freedom may be at risk but not his/her bodily integrity. [See Section 9 of the HMA and judgment rendered by this court in Harvender Court v. Harmander Singh, AIR 1984 Del 66 as also the decision rendered by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 9015.] Therefore, the expression “conjugal rights” cannot include non-consensual acts adverted to, say for example, in Clauses (a) and (b) of Section 375 of IPC. Conjugal rights as enforced via courts begin and end at cohabitation and consortium. Anything beyond this is reduced to the status of conjugal expectation only, the denial of which is the ground for divorce. The courts are unanimous in holding that sexual intercourse cannot be forced via a decree of restitution of conjugal rights. MRE, on the other hand, sanctions and indeed encourages husbands to have forced sexual intercourse with their wives. 42.4. At present, the act of forced sexual intercourse can be punished only if ingredients of lesser offences under Section 354 and related but distinct offences under Section 498 and such other provisions of IPC are present. Via MRE, a husband gets sanction to enforce his conjugal right contrary to what the understanding of the law is without approaching the court. Thus, allowing a husband to enforce his conjugal expectation of sex by permitting him to have forced sexual intercourse with his wife without penal consequences is akin to saying that a wife who believes that she is entitled to maintenance, would have the right to sell her husband's personal belongings and property without his consent and thereupon appropriate the proceeds towards her maintenance. 42.5. Unlike the United Kingdom, India has a written Constitution which lays great emphasis on fundamental rights. A statute or a provision of the 15 In short “Saroj Rani” statute that does not conform to Part III of the Constitution can be struck down by courts. This duty is cast on the courts by Article 13 of the Constitution. Macaulay’s object in inserting MRE in the IPC when the Constitution had not been adopted is liable to be struck down as it does not align with its ethos. This duty is cast on the courts by Article 13 of the Constitution. Macaulay’s object in inserting MRE in the IPC when the Constitution had not been adopted is liable to be struck down as it does not align with its ethos. The deference to the original statute ought not to be paid in perpetuity. The only legitimate object of the anti-rape laws, at present, is to protect the bodily integrity and sexual autonomy of women. 43. MRE seeks to make a dubious distinction between husbands and non-husbands, insofar as perpetrators are concerned and likewise, between wives and non-wives as regards victims. In the context of a forced sexual act- it is construed as rape when committed by a person other than a husband but is deemed less than a rape when committed by a husband. 43.1. The foundation of the arguments advanced on behalf of the respondents and intervenors is that there is an intelligible differentia between husbands and other persons who commit such acts which, in turn, has a rational nexus with the object of protecting the institution of marriage and preserving conjugal rights of the husband. In other words, this distinction lends support to the argument that MRE does not violate Article 14. This argument is flawed for the reason that every offence has three basic components i.e. the perpetrator, the victim and the act itself. These three components are present whether the offence is committed by a husband or a person other than the husband and, therefore, on all three counts, MRE should fail. 44. Taking this argument forward, the husband may have an expectation and even an in-principle agreement that there would be sex in marriage. Based on this it could be argued that there is an intelligible differentia on this basis between a husband and a person who is not a husband. However, MRE in law is flawed since it is not restricted to protecting the husband's expectation of sex but it elevates this expectation to the husband's right to have forcible sexual intercourse with his wife at any point in time and under any circumstances irrespective of her consent. Therefore, the expectation of sex cannot have rational nexus with the object sought to be achieved. Therefore, the expectation of sex cannot have rational nexus with the object sought to be achieved. The distinction drawn between forced sexual intercourse by the husband and persons other than a husband is legally untenable as it has no rational nexus with the object sought to be achieved by Section 375 of the IPC. [See Independent Thought at paragraph 75.] 44.1. What is ironic is while MRE privileges a husband's right to fulfil his sexual desire as and when he wishes to exercise it, it effaces the wife's right not to engage in sexual acts. This by itself cannot stand constitutional scrutiny. [See Joseph Shine at paragraph 168; Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1 at paragraphs 42 and 43; and Navtej Singh Johar at paragraph 438.] 45. Insofar as the victim is concerned, this distinction also does not serve the object of Article 375. In both cases, the victim ends up being degraded and humiliated. [See Independent Thought at paragraph 72.] Therefore, if the inversion test is applied, the observations made in the said paragraph could be applied to these cases as well. 46. In rape, the harm caused to the victim may vary and is independent of the relationship subsisting between the parties. For instance, if a woman is sleeping with a live-in partner and he presumes that there is consent, although, wrongly, and commits a sexual act, the victim may choose not to prosecute the partner. The victim may ask her partner to obtain consent in future. However, for instance, where a victim is subjected to gang rape and 16 In short “Anuj Garg” one of the rapists is the husband, while all others who were part of the act would be liable for prosecution under Section 376 of IPC, the husband would be protected because of MRE. It cannot be the State's policy or in its interest to prosecute only some rapists and not those who are married to the victim in such cases. 46.1. MRE grants blanket immunity to sexual acts enumerated in clauses (a) to (d) of Section 375 of the IPC and also exempts husbands from the offence of aggravated rape. For example, rape, which results in the victim's death or persistent vegetative state. [See Section 376A and Section 376D of IPC.] 47. 46.1. MRE grants blanket immunity to sexual acts enumerated in clauses (a) to (d) of Section 375 of the IPC and also exempts husbands from the offence of aggravated rape. For example, rape, which results in the victim's death or persistent vegetative state. [See Section 376A and Section 376D of IPC.] 47. The protection under MRE extends to the extent that if the husband were to allow for the acts described in Clause (a) of Section 375 to be done to another person without the wife's will or consent, it will not constitute rape. Bundling these acts committed by the husband on his wife or allowing another person to commit acts described in Clauses (a) to (d) of Section 375 with another person with lesser offences such as cruelty, simple assault or grievous hurt, ring-fences the husband without any legal or moral justification. Apart from anything else, the constitutionality of MRE has to be tested against the backdrop of the amendment made to the rape laws in 2013 and 2018. 48. As per Explanation 2 to Section 375 of the IPC, consent should be unambiguous, unequivocal and voluntary. Therefore, consent qua a prior sexual act will not extend to future occasions [See judgment dated 03.11.2021 rendered by the Punjab and Haryana High Court in CRM-M- 46063-2021, titled Narendra Singh v. State of Haryana, and Syam Sivan v. State of Kerala, 2021 SCC OnLine Ker 4307.] 49. Expectation and broad agreement to have a sexual relationship in marriage cannot do away with the wife's right to withhold consent as otherwise, it would result in giving the husband a pass-through to have sexual intercourse with his wife even when she is sick or has contracted a disease or is injured. 50. Consent is foreground in IPC in provisions concerning sexual intercourse. [See Navtej Singh Johar in the context of Section 377 of IPC and Joseph Shine in the context of Section 497 of IPC.] 51. The difference between the language of Section 377 and 375 is that in the former, the element of consent is absent. An act of forced sexual act as provided in Section 375, Clauses (a) to (d) of IPC irrespective of who commits it, is rape. The relationship between perpetrator and victim cannot change that fact. Rape is rape and, therefore, one should fairly label the offence for what it is. [See Independent Thought at paragraph 75.] 52. An act of forced sexual act as provided in Section 375, Clauses (a) to (d) of IPC irrespective of who commits it, is rape. The relationship between perpetrator and victim cannot change that fact. Rape is rape and, therefore, one should fairly label the offence for what it is. [See Independent Thought at paragraph 75.] 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 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. 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. 52.2. Furthermore, criminal laws such as IPC penalizes wrongful acts and punishes the wrongdoer, if found guilty. MRE allows the wrongdoer i.e., the husband to escape the consequences that the law provides, although, the act, otherwise, is wrongful. 53. Criminal law in India recognizes the principle of cognate offences. Such offences indicate the similarity and common essential features between the offences; they primarily differ based on the degree of the offence. Nonconsensual sexual act within the meaning of Clauses (a) to (d) of Section 375 of IPC may not be covered under cognate or lesser offences if it is not accompanied by physical violence or hurt inflicted on the body of the victim. In the case of a married woman, the power which is otherwise available vis-a-vis the alleged rapist under Section 53A of the Code i.e., examination of the blood, bloodstains, semen and swab unless done, will not in all likelihood lead to the conviction of the husband under cognate provisions. Thus, non-consensual sexual intercourse which is not accompanied by physical violence may disable a victim-wife from prosecuting her husband for cruelty under Section 498A, for hurt under Section 323 and 326 or for outraging her modesty under Section 354 of the IPC. Thus, non-consensual sexual intercourse which is not accompanied by physical violence may disable a victim-wife from prosecuting her husband for cruelty under Section 498A, for hurt under Section 323 and 326 or for outraging her modesty under Section 354 of the IPC. The crux of the challenge to MRE is the moral and legal approbation attached to the act of rape. 54. MRE violates Article 14 as the relationship between the perpetrator and the victim has no rational nexus with the object of the rape laws. 55. Woman's right to physical integrity flows from her right to life, dignity and bodily privacy protected under Article 21. The right to make reproductive choices is a dimension of personal liberty; which means, a woman has a right to refuse participation in sexual activity. [See Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 at paragraph 22; affirmed in K.S. Puttaswamy at paragraph 83.] 56. Gender violence is often treated as a matter concerning family honour; privacy must not be a cover for concealing or asserting patriarchal mindsets. [See K.S. Puttaswamy at paragraph 245.] 57. MRE is founded on a stereotypical understanding of ascribed gender roles in marriage. This would render it discriminatory under Article 15 of the Constitution. MRE dilutes agency, bodily autonomy and protections accorded by law to women in marital relationships who are subjected to rape and is, thus, violative of Article 15(3) of the Constitution. [See Independent Thought at paragraphs 180 and 181.] 58. Since MRE forms part of a statute which is pre-constitutional and, therefore, there is no presumption of constitutionality and because there is an ex-facie infringement of a married woman's fundamental rights under Article 15(1) of the Constitution, the burden of proof shifts on to the State to demonstrate that the statute is constitutional. 59. In consonance with the "strict scrutiny test", the State should demonstrate that: the impugned provision is intra vires the Constitution; ;infringement of woman's rights via the impugned provisions serves a compelling State interest; the infringement is proportionate; and lastly, it is not only narrowly tailored but is also the least restrictive measure adopted to progress the State's interest and the object it seeks to achieve. [See Anuj Garg at paragraphs 46, 47, 50 & 51 and Naz Foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762 at paragraphs 108, 111, 112; ;also see Subhash Chandrs & Anr. [See Anuj Garg at paragraphs 46, 47, 50 & 51 and Naz Foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762 at paragraphs 108, 111, 112; ;also see Subhash Chandrs & Anr. v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458 at paragraph 82; Independent Thought at paragraphs 83 and 84, and Navtej Singh Johar at paragraph 314.] 59.1. MRE fails the strict scrutiny test. There can be no compelling State 18 Affirmed in Navtej Singh Johar. interest in protecting husbands who facilitate gang rapes of their wives or rape their wives by insertion of objects or have forced penile-vaginal intercourse as none of these acts further either the institution of marriage or can be called conjugal rights of a husband. 60. Even if one were to accept that there was a State interest in protecting the institution of marriage, deeming non-consensual sex within marriage to be legal and the consequential harm it entails upon the victim is in no way proportionate to such interest, if any, of the State. 60.1. Nothing that the State i.e., the Union of India has filed by way of counter-affidavits and/or affidavits from time to time and written submissions discharges this onus placed upon it. 61. MRE is also liable to be struck down on the ground that it violates Article 19(1)(a) of the Constitution. Article 19(1)(a) of the Constitution guarantees freedom of expression to all citizens. Intimate sexual acts are a part of an individual's right to freedom of expression, albeit, subject to reasonable restrictions contained in sub-clause (2) of Article 19. [See Navtej Singh Johar, at paragraph 641.1.] 62. MRE fails to label forced sexual intercourse as rape and to protect to the full extent a woman's non-consent. The impugned provisions do not recognize the right of a woman to say “no" to sexual intercourse with her husband and as a logical sequitur, these provisions also take away a married woman's ability to say a "joyful yes" to sexual intercourse. Both aspects put MRE at cross-purposes with Article 19(1)(a) of the Constitution and, thus, limit the married woman's right to freedom concerning sexual expression and behaviour . [See R. v. J.A., (2011) 2 SCR 440, Supreme Court of Canada, at paragraph 114.] 63. The right to sexual expression applies to an adult woman. MRE reduces a wife's sexual desire and consent to a nullity. [See R. v. J.A., (2011) 2 SCR 440, Supreme Court of Canada, at paragraph 114.] 63. The right to sexual expression applies to an adult woman. MRE reduces a wife's sexual desire and consent to a nullity. MRE also does not fall under the eight grounds that Article 19(2) allows as reasonable restrictions. Out of the eight grounds, only one ground can, if at all, remotely apply to MRE i.e. decency or morality and therefore, this restriction should be read in consonance with constitutional morality. An individual's sexual desire is part of self-expression and is protected under Article 19(1)(a) and, thus, MRE cannot be justified on the ground of morality. [See National Legal Services Authority (NALSA) v Union of India (2014) 5 SCC 438 , at paragraph 69; and Navtej Singh Johar at paragraph 641.1.] 64. Striking down MRE would not create a new offence. An offence is an act or omission punishable under the Code. The offence of rape under IPC is an act of forcible/non-consensual intercourse, as described in Clauses (a) to (d) and circumstances Firstly to Sixthly set out in Section 375 of IPC, by a man on a woman which is not dependent on the relationship between the perpetrator of the crime and the victim of the act. Thus, any act falling within the ambit of the aforesaid provisions would constitute an offence of rape. MRE grants impunity from prosecution for the very same offence for a particular class of offenders i.e. husbands. Therefore, if MRE is struck down, it would not create a new offence. It would only bring within the ambit of the existing offending acts a new class of offenders i.e., husbands. [See Independent Thought at paragraphs 190 to 194.] 65. Striking down a provision as it is unconstitutionally under inclusive, will not tantamount to the creation of a new offence. [See People v. Liberta, (1984) 64 N.Y.2d 152, New York Court of Appeals and State of Gujarat v. Ambika Mills, (1974) 4 SCC 656 ] 65.1. The law distinguishes creation of a new offence and interpretation of 19 In short “NALSA” constituents of an existing offence which is the traditional negative act of judicial review. [See People v. Liberta, (1984) 64 N.Y.2d 152, New York Court of Appeals and State of Gujarat v. Ambika Mills, (1974) 4 SCC 656 ] 65.1. The law distinguishes creation of a new offence and interpretation of 19 In short “NALSA” constituents of an existing offence which is the traditional negative act of judicial review. [See Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 165 at paragraph 50; Balram Kumawat v. Union of India, (2003) 7 SCC 628 at paragraphs 4, 5, 23, 36, 37 & 40 and Devidas Ramchandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 at paragraphs 108 & 141.] Therefore, while adjudging the constitutional validity of a provision, the court deems it fit to strike it down and because of this, a new class of offenders get included within the ambit of the provision, this would not amount to the creation of a new offence as it is only a byproduct of the court fulfilling its duty under Article 13. What would amount to creating a new offence would be if the court is called upon to alter the main ingredients of the act constituting a new offence. 66. Thus, "offence" pivots on the act or omission and not the offender per se. An offence may include a perpetrator, victim, as also, the act but what is punishable under IPC is the act or the thing done. [See Section 40 of the IPC and Section 2(n) of the Code. [Also see Queen - Empress v. Kandhaia & Ors., 1884 SCC OnLine All 142 and S. Khushboo v. Kanniammal & Anr., (2010) 5 SCC 600 at paragraph 30.] The submission is that the offence of rape is an act of forcible/non-consensual intercourse, as described in Clauses (a) to (d) and circumstances Firstly to Sixthly, by a man upon a woman which is entirely separate from the relationship obtaining between the perpetrator and the victim of the act. Therefore, it is the act which falls within the ambit of the provision which would constitute the offence of rape. The contention is that striking down or reading down an unconstitutional provision is an interpretative exercise carried out by the court in the discharge of the court's constitutional duty which is recognized as falling within the domain of the court since the days of Marbury v. Madison 5 US 137 (1803). 67. The contention is that striking down or reading down an unconstitutional provision is an interpretative exercise carried out by the court in the discharge of the court's constitutional duty which is recognized as falling within the domain of the court since the days of Marbury v. Madison 5 US 137 (1803). 67. Unconstitutional exception provided in a statute cannot have a free pass from judicial review on the ground that its removal would result in the creation of a new offence. [See Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222 , at paragraphs 26 and 28]. 68. The apprehensions expressed by MWT and those opposing the petitioners that the burden of proof in certain cases, say, offences falling under Section 376(2)(f) may shift in case MRE is struck down, is unfounded. Since MRE was on the statute when the said provision was inserted, the courts would take recourse to the mischief rule or apply the principles of purposive construction and could thus hold the expression "relative" would not bring by default a spouse within the ambit of Section 376(2)(f). The courts could also apply the doctrine of noscitur a sociis and hold that since the expression "relative" appears in the company of expressions such as "guardian" and "teacher" or a person in a position of "trust" or "authority", the only relationship which would get covered under the expression "relative" could be that where the accused is in a position of power over the complainant akin to fiduciary trust. 68.1. However, other aggravated forms of rape such as those covered under Sections 376A (results in death or persistent vegetative state of the victim) and 376D (gang-rape) go unpunished insofar as the husband is concerned will be punished in case MRE is struck down. 69. The argument that if the MRE is struck down, the provisions concerning rape will be misused is devoid of any empirical data. In fact, the most recent data (2015-2016) of the National Family Health Survey (NFHS) reveals that 83% of married women falling between the age bracket 15 - 49 years were victims of sexual violence committed by their “current husbands” while 9% were subjected to violence by their “former husbands”. 70. Furthermore, the analysis of NFHS data reveals that nearly 99.1% of sexual violence cases are not reported and in most such instances, the perpetrator is the husband of the victim. 70. Furthermore, the analysis of NFHS data reveals that nearly 99.1% of sexual violence cases are not reported and in most such instances, the perpetrator is the husband of the victim. This data also reveals that a woman is 17 times more likely to face sexual violence from her husband than from others. Besides this, even after cases involving marital rape and assault are excluded, the data reveals that only 15% of sexual offences committed by persons other than the current husband of the victim are reported to the police. It is important to emphasize that there are enough and more safeguards available in the IPC to protect those who bear the brunt of a false criminal complaint being lodged against them. Provisions concerning these safeguards are found in Chapters X and XI of the IPC [see Sections 182, 191 and 211 of IPC]. 71. The other argument raised on behalf of the respondents which is that striking down MRE would expose the husbands to the risk of being awarded a high mandatory minimum sentence of 10 years punishment is an argument that deserves to be rejected at the very threshold. This is so as sentencing is a matter of policy which does not fall within the realm of the court. The minimum mandatory sentence for an offence such as rape cannot be a consideration or factor in determining as to whether or not MRE is constitutionally viable. It is the court's bounden duty to strike down a provision which is unconstitutional notwithstanding the concerns that may be raised over its perceived (dis)proportionality. That said, it is a matter of concern for several women that high mandatory minimum sentences even in the context of non-marital rape do not serve the cause of women but instead lead to lesser reporting of the offence and fewer convictions. A study of judgments concerning the offence of rape rendered by trial courts in Delhi between 2013 and 2018 revealed that under the old law, the conviction rate was 16.11% whereas after the Criminal Law (Amendment) Act, 2013, the conviction rate fell to 5.72%. The drop in conviction rate is significant and of grave concern. The sentencing policy, perhaps, needs a relook, both, by the government of the day and the parliament. The uptick in the mandatory minimum sentence has usually followed a heinous crime. The drop in conviction rate is significant and of grave concern. The sentencing policy, perhaps, needs a relook, both, by the government of the day and the parliament. The uptick in the mandatory minimum sentence has usually followed a heinous crime. The 1983 amendment introduced a mandatory 7 years minimum sentence following the Mathura rape case Tukaram v. State of Maharashtra, (1979) 2 SCC 143 . Likewise, the Nirbhaya gang rape triggered the Criminal Law (Amendment) Act, 2013 and inter alia resulted in increasing the minimum mandatory sentence to 10 years. 72. Thus, the mere existence of a high mandatory minimum sentence may result in problems regarding sentencing in all cases of rape. [See Narinder Singh v. State of Punjab, (2014) 6 SCC 466 at paragraphs 14 and 15.] Therefore, while the mere existence of a high mandatory minimum sentence cannot be the basis for striking down the entire provision concerning the offence of rape, the converse should also hold true. In other words, the existence of a high mandatory minimum sentence provided in Section 376(1) of IPC should not be the reason for not striking down MRE since a rapist remains a rapist irrespective of the relationship with the victim and the harm caused to the victim is independent of the relationship between the parties. [See Justice Verma Committee Report at paragraph 77.] 73. The submission is that the sentence imposed for rape whether within or outside marriage must be proportionate to the gravity of the offence, harm caused to the victim and other facts and circumstances obtaining in the matter. The high mandatory minimum sentence presently prescribed for the offence of rape may not meet the proportionality concerns articulated above. That said, these concerns cannot be the ground for refusing to strike down MRE. That courts both in India and abroad have made recommendations to the legislature regarding sentencing issues in the context of the offence of rape is discernible from the following judgments: Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590 ; and the judgments rendered by the Supreme Court of Nepal in Forum for Women, Law and Development v. His Majesty's Government of Nepal & Ors. [Writ No. 55 of the year 2058 BS (2001-2022)] and Jit Kumari Pangeni and Ors. v. Govt. of Nepal [Writ No. 064-0035 of the year 2063 (July 10, 2008).] 74. [Writ No. 55 of the year 2058 BS (2001-2022)] and Jit Kumari Pangeni and Ors. v. Govt. of Nepal [Writ No. 064-0035 of the year 2063 (July 10, 2008).] 74. While MWT has taken a position different from that of the petitioners insofar as striking down impugned provisions is concerned, another men's forum i.e., Forum for Engagement of Men (FEM) has supported the plea of the petitioners. [See paragraphs 1, 2 and 3 of FEM's application. CM No. 31578/2017, preferred in W.P.(C) No. 284/2015.] 75. There is no discretion available to the court when concerns regarding the violation of fundamental rights are raised before it. It is obligatory on the part of the court to exercise its powers under Article 226 if the violation of fundamental rights is established. Therefore, the argument that striking down MRE would lead to misuse, abuse, inconsistencies with social morality or such a move would be contrary to the legislative intent or would result in the imposition of high mandatory sentences on husbands are aspects which should not prevent the court from striking down MRE if it is ultimately found to be ultra vires the Constitution. Article 226 has two parts: The first part concerns the enforcement of fundamental rights under Part III 23 In short “FWLD (Nepal)” of the Constitution. The second part gets triggered when a litigant approaches the constitutional court for purposes other than enforcement of rights contained in Part III of the Constitution. The discretion to grant or not to grant relief obtains, if at all, only in respect of the second part of Article 226. There is no discretion available to the court where a plea is made for enforcement of fundamental rights under Part III of the Constitution. 76. Like in the case of MWT, FEM which is a forum for men that supports the cause of the petitioners. On behalf of FEM, Mr Raghav Awasthy, made brief submissions, which have not been recorded specifically, to avoid prolixity, as they stand encapsulated in the submissions advanced by Ms Nundy. Submissions advanced by Amicus Curiae 77. The submissions advanced by Ms Rebecca John, learned senior counsel, can be, broadly, paraphrased as follows : 77.1. IPC distinguishes general and special exceptions. General exceptions are contained in Chapter IV of the IPC while special exceptions are embedded in the relevant penal provision. Submissions advanced by Amicus Curiae 77. The submissions advanced by Ms Rebecca John, learned senior counsel, can be, broadly, paraphrased as follows : 77.1. IPC distinguishes general and special exceptions. General exceptions are contained in Chapter IV of the IPC while special exceptions are embedded in the relevant penal provision. MRE i.e. Exception 2 to Section 375 of the IPC falls in the category of a "special exception" to the offence of rape. 77.2. The burden of proving that the act committed falls within the realm of exception lies upon the accused. [See Section 105 of the Evidence Act.] Ordinarily, the person taking recourse to a special exception must prove that his act falls within the said exception; the standard of proof being the preponderance of probability. [See K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 at paragraph 18; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 at paragraphs 5 to 7 and Harbhajan Singh v. State of Punjab, AIR 1966 SCC 97 at paragraphs 13 to 15]. 77.3. Exceptions contained in the IPC are based on subjective and/or objective facts. Illustratively, Sections 78 and 82 of the IPC are acts which are based on objective facts. In contrast, for example, the exceptions to the offence of defamation provided under Section 499 of IPC are based on facts that are subjective and, therefore, must be pleaded and proved in a court of law. 77.4. Thus, exceptions based on objective facts prohibit prosecution. MRE (i.e. Exception 2 to Section 375 of IPC) does not have to be pleaded or proved unless the existence of marriage itself is in dispute. 78. The legislative history of MRE would show that it was incorporated to protect the conjugal rights of the husband and after considerable debate, it protected wives below 10 years of age from forcible sexual abuse. Thus, even before the preparation of the draft penal code by Lord Thomas B. Macaulay in 1837, the common law excluded the wife's consent from the sphere of sexual acts. The common law position is traceable to the Doctrine of Coverture and implied consent. According to this doctrine, the legal rights of a woman were effaced after marriage. A woman having entered matrimony was deemed as her having given irrevocable consent to participation in sexual acts with her husband. [See Hale's Doctrine.] 79. The common law position is traceable to the Doctrine of Coverture and implied consent. According to this doctrine, the legal rights of a woman were effaced after marriage. A woman having entered matrimony was deemed as her having given irrevocable consent to participation in sexual acts with her husband. [See Hale's Doctrine.] 79. In support of her submissions, Ms John drew our attention to the relevant provisions of the draft IPC and the relevant notes appended thereto, the observations made by the Indian Law Commissioners in their "First Report on Penal Laws, 1844" and the resultant modification brought about in Section 375 when it was first incorporated in the IPC. 79.1. In this context, our attention was also drawn to how the parameters concerning age were incorporated in Exception 2 to Section 375 of IPC commencing from 1837 (when there was no provision for age in the exception) up until 2017 when the Supreme Court rendered its decision in Independent Thought case. 80. Our attention was also drawn to the legislative history concerning sexual offences as it prevailed in the United Kingdom commencing with the amendment made to the Sexual Offences Act, 1956 via the Sexual Offences (Amendment) Act, 1976 and the view expressed by the House of Lords qua MRE in R. v. R., 1991 UKHL 12 : 1991 (4) All ER 481. 80.1. The impact of the decision rendered in R. v. R. was also brought to our notice by referring to Section 142 of the Criminal Justice and Public Order Act, 1994. 81. Going further, Ms John made the following submissions: (i) MRE renders a married woman remedy less when she is subjected to an offence of rape by her husband. It disregards the wife's right to consent to sex within marriage. Resultantly, while Section 375 criminalizes sexual acts committed without the consent of a woman, it exempts husbands from being prosecuted only on account of their marital relationship with the victim. (ii) The MRE infringes the fundamental rights of a married woman. The validity of MRE has to be tested not with reference to the object of the State action but based on its effect it has on freedoms guaranteed under the Constitution. [See K.S. Puttaswamy.] (iii) MRE takes away a married woman's sexual agency. The provision subordinates the wife vis-à-vis her husband in the context of the marital arrangement obtaining between them. [See K.S. Puttaswamy.] (iii) MRE takes away a married woman's sexual agency. The provision subordinates the wife vis-à-vis her husband in the context of the marital arrangement obtaining between them. MRE is, therefore, manifestly arbitrary. [See observations made in Joseph Shine which struck down Section 497 of the IPC and, thus, decriminalized adultery.] (iv) Antiquated notion of marriage as articulated more than 200 years ago; by Lord Hale needs to be changed. The common law understanding of marriage which was engrafted in the IPC should be judicially discarded as has been done in the United Kingdom; the country from which the doctrine was borrowed in the first instance. Constitutional courts must intervene when structures of injustice and persecution deeply entrenched in patriarchy destroy constitutional freedom. In doing so, the court would not be adopting a paternalistic approach but would be fulfilling its duty to give effect to the rights already enshrined in the Constitution. 82. The striking down of MRE would not lead to the creation of a new offence. [See Independent Thought and R. v. R.] 83. Although, there are several provisions in the IPC which deal with offences committed against married women by their husbands, they do not address the crime concerning non-consensual sex between a husband and a married woman. In this behalf, our attention was drawn to Sections 498A, 304B, 306, 377 of the IPC; the presumptions created in law under Section 113A, 113B of the Evidence Act; Sections 3 of the Dowry Prohibition Act, 1961 [in short "Dowry Act"]; Section 3 of the D.V. Act and lastly, Section 24 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. 83.1. The aforementioned provisions criminalize and punish a variety of crimes committed by a husband against his wife. These are criminal acts in the nature of physical violence, mental cruelty/violence and dowry demand. Furthermore, remedies are also available to a woman against abuse which is in the nature of physical, sexual, verbal or even emotional under the D.V. Act. Besides this, procedural rules of evidence create a presumption against a husband in the event of the unnatural death of a married woman or in a case involving the unlawful determination of the sex of a foetus. None of them, as indicated above, bring within its ambit forced sexual acts committed by the husband on his wife. Besides this, procedural rules of evidence create a presumption against a husband in the event of the unnatural death of a married woman or in a case involving the unlawful determination of the sex of a foetus. None of them, as indicated above, bring within its ambit forced sexual acts committed by the husband on his wife. Likewise, Section 498A does not cover non-consensual sex. The statement of objects and reasons of the Criminal Law (Amendment) Act, 1983 whereby Section 498A was incorporated in the IPC establishes that it was introduced to deal with the specific evil of dowry deaths and marital cruelty inflicted by the husband or the in-laws on a married woman for dowry. The expression "cruelty" as defined in Section 498A does not bring within its ambit non-consensual acts committed within marriage. [See Section 498A(a) and (b) of IPC.] 84. In criminal law, offences are separately and distinctly defined. There is no overlap between provisions created to address crimes against women and the offence of non-consensual sex within marriage. Each of the aforementioned special provisions/statutes, framed for the protection of a married woman, deal with specific crimes. The crime of rape is outside the purview of the aforementioned provisions and/or statutes. [See the Statement of Objects and Reasons of D.V. Act, Dowry Act and Criminal Law (Amendment) Act, 1983.] 85. A perusal of the Statement of Objects and Reasons of the D.V. Act, the Dowry Act and the Criminal Law (Amendment) Act, 1983 would establish that the argument advanced by the respondents that equal and alternative remedies are available in law to wives concerning forced sex within marriage, is flawed. Assuming without admitting that equal and alternate remedies exist under law for the protection of married women, specific beneficial provisions carved out in law to protect the interests of a woman victim under the following provisions would still not be available to a married woman i.e., Section 228A of IPC; Sections 26, 53A, 154, 157, 161, 164, 164A, 309, 327 and 357C of the Code and the proviso appended to Section 146 of the Evidence Act. 86. International Conventions can be read into domestic law, especially, for construing the contours of domestic law when there is no inconsistency between the international convention and the domestic law. [See Vishaka at paragraph 14; and Independent Thought at paragraph 34.] 86.1. 86. International Conventions can be read into domestic law, especially, for construing the contours of domestic law when there is no inconsistency between the international convention and the domestic law. [See Vishaka at paragraph 14; and Independent Thought at paragraph 34.] 86.1. Furthermore, in the same vein, India's obligation under the Convention on the Elimination of All Forms of Discrimination Against Women [in short "CEDAW"] requires that MRE should not remain on the statute. Reference in this regard is made to the following: (i) CEDAW (37th Session, 2007) - Concluding comments on the Committee on the Elimination of Discrimination against women: India; at paragraphs 22 and 23. (ii) CEDAW (58th Session, 2014) - Concluding Observations on the fourth and fifth periodic reports of India; at paragraph 11(c) of Clause C. (ii) 47th Session, 2021 - UNSR on Violence Against Women, Dubravka Šimonovic - Rape as a grave, systematic and widespread human rights violation, a crime and a manifestation of gender-based violence against women and girls, and its prevention, at paragraphs 22, 36, 69, 70-72. (iii) 47th Session, 2021 - UNSR on Violence Against Women, Dubravka Šimonovic - A Framework for legislation on rape (Model Rape Law), at serial No. V, Article 2, paragraph 17. (iv) 26th Session, 2014 - UNSR on Violence against women, its causes and consequences, Rashida Manjoo - Mission to India, at paragraphs 49-50, 78 of Clause IV(A). (v) UNSR VAW - 52nd Session (Commission on Human Rights, 1996) - Report of the Special Rapporteur on violence against women, its causes and consequences. 87. Provisions in the IPC which provide for exceptions on account of marital relationships are based on crimes committed outside marriage and not a crime committed by one spouse upon the other. [See Sections 136, 212, 216 and 216A of IPC.] 87.1. Thus, even for the sake of argument, it is accepted that IPC recognizes that marital relationship is distinct from other relationships, no rational nexus is discernible between the exception carved out in Section 375 and the object sought to be achieved by the said provision which is to recognize and punish persons who commit the offence of rape on a woman. Therefore, the differentia between a married and unmarried woman has no rational nexus with the object sought to be achieved by the provision. 88. It is time to revisit the validity of MRE. Therefore, the differentia between a married and unmarried woman has no rational nexus with the object sought to be achieved by the provision. 88. It is time to revisit the validity of MRE. Considering the fact that several countries around the world have done away with MRE and that much water has flown since the opinion given by the Law Commission of India in its 172nd Report was published in 2000- it is important to highlight that after the Nirbhaya gang rape case, via Criminal Law (Amendment) Act, 2013, several amendments were brought about in criminal law pursuant to recommendations made by the Justice Verma Committee which included a recommendation for deletion of MRE. Since then, the judicial opinion in India has moved perceptibly in the direction of recognizing the autonomy and sexual agency of an individual including that of a married woman. [See Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj. 732. 89. MRE is anachronistic and an offensive provision; which has no place within the constitutional framework as it operates in India today. Thus, to give full effect to the plea for striking down MRE/Exception 2 to Section 27 In short “Nimeshbhai Bharatbhai” 375 of the IPC, Sections 376B of IPC and Section 198B of the Code must also be struck down. 90. Ms John also made suggestions for changes that should be brought about by the legislature concerning sentencing. According to her, experience has shown that a high minimum mandatory sentence has not led to an increase in conviction rates. She suggests that the legislature needs to, perhaps, reduce the period of mandatory minimum punishment and at the same time restore the discretion which courts had in matters of sentencing before the Criminal Law (Amendment) Act, 2013. 90.1. Our attention was drawn to the fact that before the Criminal Law (Amendment) Act, 2013, the court had the discretion to impose a sentence of imprisonment less than the prescribed period, which was, 7 years. In this behalf, reference was also made to the sentencing regime which prevails in the United Kingdom and is governed by the provisions of the Coroners and Justice Act, 2009 and the guidelines framed thereunder by the Sentencing Council constituted under the said act. [See Sections 118 and 120 of Coroners and Justice Act, 2009.] 90.2. In this behalf, reference was also made to the sentencing regime which prevails in the United Kingdom and is governed by the provisions of the Coroners and Justice Act, 2009 and the guidelines framed thereunder by the Sentencing Council constituted under the said act. [See Sections 118 and 120 of Coroners and Justice Act, 2009.] 90.2. Lastly, the submission made was that should MRE be struck down, a husband cannot be brought under the provisions of Section 376(2)(f) of the IPC which deals with the offence of aggravated rape committed while the victim is in the custody of the perpetrator or holds the position of trust or authority with a woman-victim. The latter which is provided in Clause (f) of sub-section (2) to Section 376 should exclude the husband having regard to the context in which the expressions "relative", "guardian" or "teacher" are used. 91. Mr Rajshekhar Rao, learned senior counsel, made the following submissions concerning the issues raised in the course of the hearing : 91.1. The argument articulated on behalf of the respondents that this court should defer to the wisdom of the legislature or that the court is an improper forum for adjudication of the issues at hand and is not in a position to hear multiple opinions from various sections of the society is an argument which is liable to be rejected. This submission is flawed, broadly, for two reasons: First, it disregards the nature of the relief sought by the petitioners. Second, it ignores the power available to the court under Article 226 of the Constitution. 91.2. Article 13 read with Article 226 of the Constitution empowers the High Courts to strike down laws that are inconsistent with or in derogation of fundamental rights. [See Navtej Singh Johar.] Constitutional courts have an obligation to declare laws which are found to be unconstitutional, more so, when legislatures have been lethargic despite the recommendation of expert bodies. [See Justice Verma Committee Report.] While examining the validity of a provision or statute, the courts should apply the "effect test" to ascertain whether an artificial distinction is created between different classes of persons. [See Anuj Garg.] The role of the constitutional High Courts becomes particularly significant as they are obliged to ensure the retention of gender equality and to provide mechanisms to enable women to redress their grievances related to gender-based violence. [See Anuj Garg.] The role of the constitutional High Courts becomes particularly significant as they are obliged to ensure the retention of gender equality and to provide mechanisms to enable women to redress their grievances related to gender-based violence. [See Aparna Bhat v. State of Madhya Pradesh, (2021) SCC OnLine SC 230.] 91.3. The question raised by the petitioners is not only one relating to the inadequacy of remedy but rather relates to the flagrant violation of the fundamental rights of a married woman. In other words, the assertion of a married woman is : to be treated at par with other women, to be accorded protection for her bodily integrity, recognition of her sexual agency and lastly, the right to prosecute the rapist irrespective of her relationship with the offender. Therefore, while courts must give wide latitude to the legislature concerning statutes dealing with fiscal and economic matters as they are "essentially ad hoc" or "experimental", the approach to be adopted by the courts is very different when it concerns matters involving civil liberties and human rights. The petitioners seek the intervention of this court to strike down an unconstitutional provision and, not to, amend a policy decision. Consequently, the instant lis falls squarely within the ambit of Article 226 of the Constitution. [See Laxmi Devi.] 92. MRE fails the Article 14 test. The argument advanced by the intervenors that because there exists a differentia between married and unmarried couples, which is, the basis for classification, MRE should be sustained is flawed for the following reason : This submission fails to appreciate that classification based on intelligible differentia should have rational nexus with the objects sought to be achieved viz. it must be "pertinent to the subject in respect of and the purposes of which it was made". [See State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 .] 92.1. While this test is easily applicable to the object of the statute as a whole for special enactments, it is the purpose of the specific provision which becomes relevant as in the case of general enactments such as IPC. [See Subramanian Swamy v. CBI, (2014) 8 SCC 682 ; Harsora v. Harsora; ;Navtej Singh Johar; and Mithu v. State of Punjab, (1983) 2 SCC 277 .] 92.2. [See Subramanian Swamy v. CBI, (2014) 8 SCC 682 ; Harsora v. Harsora; ;Navtej Singh Johar; and Mithu v. State of Punjab, (1983) 2 SCC 277 .] 92.2. This is particularly so because within the same legislation, the same differential i.e., marital status may be used as the basis for classification in multiple sections, for example, in Sections 136, 212, 216 and 216A of the IPC and, therefore, while the differentia may satisfy the test of Article 14 in one case, it may not satisfy the test in another case such as MRE. In the present case, the test can either be applied to Section 375 in its entirety or more narrowly, only to Exception 2 appended to it. Since the role of an exception or proviso is to carve out something from the main provision, it can neither subsist independently nor can it nullify the object of the main provision. Therefore, the test should be applied to Section 375 as a whole and if it is so applied, it would come to fore that the differentia sought to be drawn between married and unmarried couples is both irrelevant and arbitrary. 93. Admittedly, the purpose of Section 375 of the IPC is to punish nonconsensual 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. 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 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 353 ; 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 who is in a position of trust i.e., in a fiduciary capacity is more egregious than one done by a stranger. [See Section 376(2)(f) of the IPC.] 93.4. This is particularly disconcerting when IPC in the same breath recognizes that an act perpetrated by a person who is in a position of trust i.e., in a fiduciary capacity is more egregious than one done by a stranger. [See Section 376(2)(f) of the IPC.] 93.4. The argument that the exception needs to be retained to preserve the institution of marriage is flawed for the following reasons: First, the law itself recognizes that it cannot force parties to have sexual intercourse even if they are married. This is evident from the fact that even orders for restitution of conjugal rights can only be enforced by attaching property. [See Order XXI Rule 32 of the Code of Civil procedure, 1908 (CPC) and Saroj Rani.] Second, forced sexual intercourse in marriage, far from preserving the institution of marriage, is a reflection of what the marriage ought not to be. Marriage denotes a partnership of equals with reasonable marital privileges for both spouses. However, reasonable expectations or privileges cannot be equated with willingness or consent by default in all situations. [See Joseph Shine, Indra Sarma v. V.K. Sarma, (2013) 15 SCC 755 ; State of U.P. v. Chhotey Lal, (2011) 2 SCC 550 .] 93.5. Marriage is no longer as “sacred” or “sacrosanct” as it was considered in the past. Legislative provisions for divorce and judicial separation support this conclusion. [See Sections 10 to 13B of the HMA; Sections 23 and 24 of the SMA; Sections 32 and 34 of Parsi Marriage and Divorce Act, 1936 and Sections 10, 10A and 23 of the Divorce Act, 1869]. 93.6. Furthermore, procreation is not the only purpose of marital intercourse as is evidenced by the fact that it is impotence rather than sterility which makes a marriage voidable. [See Section 12(1)(a) of HMA.] This further reinforces the inbuilt statutory recognition of the right of a wife to expect a healthy sexual relationship with her spouse. Implicit in this presumption is that such a relationship is consensual. Therefore, the 30 In short “Chhotey Lal” contention that striking down MRE would destroy the institution of marriage is meritless since the husband can be prosecuted for several other offences in relation to the said act. 94. Implicit in this presumption is that such a relationship is consensual. Therefore, the 30 In short “Chhotey Lal” contention that striking down MRE would destroy the institution of marriage is meritless since the husband can be prosecuted for several other offences in relation to the said act. 94. The argument that because of the subsistence of marital relationship between the offender and the victim, it would be inherently difficult to ascertain whether ingredients of willingness or consent were present in the sexual act must be rejected as an irrelevant aspect in the instant cases - as these are matters concerning the trial and evidentiary procedure and hence, can neither render the classification provided in the exception as reasonable or non-arbitrary nor can it prevent the same being struck down on constitutional grounds. The courts must "separate the grain from the chaff" when appreciating evidence which is true of every matter going to trial including matters involving sexual offences whether in the context of marriage or outside marriage. Thus, even if MRE is struck down and the rape committed by a husband on his wife is criminalized, the courts will have to continue to perform the same role of appraising evidence; there is no good reason, not to repose faith in the ability of the court to do so just because of the subsistence of marital relationship between the offender and the victim. To deny a married woman the right to call a rape a rape if committed by her husband, would strike at the very core of her right to life and liberty guaranteed under Article 21 of the Constitution. Independent of the challenge laid to MRE under Article 14, it violates the provisions of Article 21 of the Constitution. This submission is de hors the submission made that MRE does not satisfy the twin test provided in Article 14 of the Constitution i.e., that the classification should be based on intelligible differentia and that it should have nexus with the objects sought to be achieved by the provision as a whole. 94.1. The act of non-consensual sexual intercourse or rape is abhorrent and is inherently violative of the basic right to life and liberty guaranteed by Article 21 in any context. The act causes deep psychological, physical and emotional trauma. Such an offence is not an offence just against the victim but the society at large. 94.1. The act of non-consensual sexual intercourse or rape is abhorrent and is inherently violative of the basic right to life and liberty guaranteed by Article 21 in any context. The act causes deep psychological, physical and emotional trauma. Such an offence is not an offence just against the victim but the society at large. It violates the woman's right to : (a) equality and equal status under the law which is conferred on all human beings (b) dignity and bodily integrity (c) personal and sexual autonomy (d) bodily and decisional privacy (e) reproductive choices i.e., right to procreate and absentation from procreation. [See Moti Lal v. State of M.P., (2008) 11 SCC 20 ; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 ; Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 ; State of Haryana v. Janak Singh, (2013) 9 SCC 431 ; NALSA; Joseph Shine; K.S. Puttaswamy;;Z. v. State of Bihar, (2018) 11 SCC 572 and Suchita Srivastava.] 94.2. Rape is rape and a rapist remains a rapist; no amount of classification and verbal jugglery can alter that reality. Notably, every other woman including a sex worker is entitled to decline consent and prosecute for rape; a right which is not available to a married woman. [See CR v. UK, Independent Thought; and State of Maharashtra v. Madhukar Narayan Madikar, (1991) 1 SCC 57 .] The effect of MRE is to render the wife's lack of consent irrelevant inasmuch as where she does not consent to a sexual act, she cannot prosecute her husband for rape. There can be no greater indignity that the law can heap upon a woman than to deny her the right to prosecute for violation of her bodily integrity, privacy and dignity, that too, at the hands of her husband from whom she would legitimately expect to receive love and affection and who would be expected to safeguard her interests. The argument that the husband can be prosecuted inter alia under other provisions such as assault (Section 351 of IPC), sexual harassment (Section 354A of IPC) or for outraging her modesty (Section 354 of IPC), misses the point that if this submission is accepted, it would trivialize an act which has grave and irreversible psychological and physical consequences for the victim; for this reason alone, MRE deserves to be struck down. 94.3. 94.3. Therefore, if the provision is violative of fundamental rights, as in this case, the court cannot step aside and wait for the legislature to intervene in the matter. The court is duty-bound to invalidate a provision or the statute if it infracts an individual's fundamental rights guaranteed under the Constitution. [See Independent Thought; Shayara Bano and Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600.] 95. It is fallacious to contend that the court cannot strike down MRE because it will result in discrimination against men due to the gendered nature of Section 375 of the IPC. The issue before the court is not whether Section 375 or any part thereof should be made gender-neutral but whether MRE is justifiable and tenable in law. Article 15 of the Constitution mandates positive discrimination in favour of women and, therefore, there are several statutes and provisions, which include Section 375, which carry this ethos forward. The challenge in these petitions is restricted to unreasonable classification created against women and, therefore, this court is empowered to strike down MRE on the ground that it violates Article 14 of the Constitution. Invitation to make the provision gender-neutral, if accepted by the court, would tantamount to stepping into the shoes of the legislature which is best avoided. 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 law. The act of rape is punishable. The striking down of MRE will not criminalize a new behaviour or act. 96.1. There is will no violation of Article 20(1) as striking down would operate prospectively. 96.2. Courts have in the past expanded the application of existing offences by revoking exemptions granted to a class or by removing differences in sentences in different classes. [See Harsora v. Harsora; and Mithu.] 97. The continuation of MRE on the statute is in the teeth of India's obligations under Articles 1, 2, 5 and 16 of CEDAW which require the elimination of all forms of discrimination against women, particularly, in relation to marriage. Nations that are signatories to CEDAW are required to repeal all national penal provisions that give effect to acts of discrimination directed against women. Nations that are signatories to CEDAW are required to repeal all national penal provisions that give effect to acts of discrimination directed against women. Furthermore, the courts are required to give effect to the obligations undertaken under international conventions. [See NALSA; ;Navtej Singh Johar; People's Union of Civil Liberties v. Union of India, (1997) 3 SCC 433 ; Apparel Exports Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 .] 98. The courts in various other jurisdictions have recognized that exemptions from prosecution for the offence of rape based on the marital relationship between the offender and the victim is an antiquated concept and should no longer be available as a defence to an offender. [See R. v. R.; ;People v. Liberta; FWLD (Nepal); Jit Kumari (Nepal); People of the Philippines v. Edgar Jumawan (G.R.No. 187495 dt. 21.04.2014), Supreme Court of the Republic of the Philippines.] 98.1. The contention advanced by the intervenors that the aforementioned foreign jurisdictions did not have a provision akin to Section 2 to Section 375 of IPC is accurate insofar as U.K. and Nepal are concerned. The statute referred to in People v. Liberta at the relevant time provided a specific exception for an act of rape against one's wife. The law in Nepal now stands legislatively amended to criminalize the act, albeit, with lesser punishment than rape by a stranger. Notably, each of the aforementioned decisions in one form or another recognize that the existence of such an exception whether in the statute or, the law was "repugnant and illogical", abuse of the married woman's human rights and "simply unable" to withstand even the slightest scrutiny. Insofar as India is concerned, these very aspects militate against the continuation of MRE on the statute. 99. In sum, the submission is that this court ought to strike down the impugned provisions as they are violative of Articles 14 and 21 of the Constitution. Analysis and Reasons I. Brief History of Rape Law 100. To understand, why the continuance of MRE on the statute is problematic for a substantial number of persons, if not all, it would be useful to closely look at the history of MRE; a plain reading of which will disclose that it is steeped in patriarchy and misogyny. Analysis and Reasons I. Brief History of Rape Law 100. To understand, why the continuance of MRE on the statute is problematic for a substantial number of persons, if not all, it would be useful to closely look at the history of MRE; a plain reading of which will disclose that it is steeped in patriarchy and misogyny. In fact, I would go further and say that MRE has contributed to diminishing the freedom won by human beings from slavery and the struggle that they experienced in removing discrimination on account of colour, creed, ethnicity and sex. 101. The genesis of MRE is rooted in the doctrine expounded by Sir Matthew Hale, Lord Chief Justice of the Court of King's Bench in a document titled "History of the Pleas of the Crown" which was published sixty years after his death i.e., in 1736. The original formulation, as it appears, concerning MRE was framed by Sir Matthew Hale as follows : "Hiftoria Placitorum Corone Be so, for the woman may forfake that unlawful courfe of life. But the husband cannot be guilty of a rape committed by himfelf upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herfelf in this kind unto her husband, which he cannot retract.”[Emphasis is mine.] 102. This formulation came to light with the publication of the book authored by John Frederick Archbold in a book titled Pleading and Evidence in Criminal Cases (1822: First Edition). "assault, under 48 & 49 Vict. c. 69, s. 9 (ante, p. 1017). A woman may be convicted as principal in the second degree in rape. R.v. Ram, 17 Cox, 609, 610 n., Bowen, L.J. It is a general proposition that a husband cannot be guilty of a rape upon his wife. 1 Hale, 629; but it would seem that the proposition does not necessarily extend to every possible case: see the remarks of the judges in R. v. Clarence, 22 Q. B. D. 23. But both a husband and a boy under fourteen.” [Emphasis is mine.] 103. 1 Hale, 629; but it would seem that the proposition does not necessarily extend to every possible case: see the remarks of the judges in R. v. Clarence, 22 Q. B. D. 23. But both a husband and a boy under fourteen.” [Emphasis is mine.] 103. A perusal of the aforesaid extract from John Frederick Archbold's book would show that even as far as the early part of 19th-century doubts were entertained as to the applicability of the principle articulated by Sir Matthew Hale ( at least in certain circumstances) that a husband cannot be held guilty of committing the rape qua his wife. R. v. Clarence [1888] 22 Queen’s Bench Division 23 was a case in point. This is a case that I would discuss in the latter part of my judgment. Suffice it to say that this case did bring to the fore the unmistakable fact that the proposition did not stand on terra firma. The English courts also found, it appears, ways and means to dilute the common law doctrine which was that once a woman entered matrimony, it was deemed that she had given her irrevocable consent to sexual communion with her husband. [See R. v. Clark, (1949) 2 All ER 448; R. v. Obrien, (1974) 3 All ER 663; R. v. Steele, (1976) 65 Cr. App. R 22.] 104. However, the change in law moved at a glacial pace even in the United Kingdom (UK); the birthing mother of the troublesome common law doctrine. It appears that the offence of rape was formally defined for the first time with the enactment of the Sexual Offences (Amendment) Act, 1976. This Act amended the Sexual Offences Act, 1956 by defining the offence of rape as follows : "Sexual Offences (Amendment) Act 1976 CHAPTER 82 1. Meaning of “rape” etc. (1) For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if - (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it; and reference to rape in other enactments (including the following provisions of this Act) shall be construed accordingly.” [Emphasis is mine.] 104.1. A close examination of the definition of rape, as extracted above, would show that it left, so to speak, a possibility of a defence being raised based on the Common Law Doctrine, adverted to above, when the offender was the husband and the victim his wife, because of the incorporation of the 33 In short “R v. Clark” word "unlawful” along with the expression “sexual intercourse" in the definition of rape. 104.2. This aspect came to the fore in a case which travelled to the House of Lords from a judgment rendered by the Court of Appeal (Criminal Division) in R. v. R. The Court of Appeal had rejected the appeal preferred by the husband who was convicted for the offence of rape vis-a-vis his wife and in the process had read down the MRE i.e., the Common Law Doctrine that a husband cannot be held guilty of committing rape on his wife on the ground that once she entered into matrimony, she could not revoke her consent for sexual union. 104.3. Pertinently, the decision of the House of Lords in R. v. R. (this is important from the point of view of arguments advanced before us as to why this court should not enter the arena reserved for the legislature) impelled the English Parliament to amend the subsisting law i.e., the Criminal Justice and Public Order Act, 1994 by incorporating Section 142 in the said Act : “PART XI SEXUAL OFFENCES Rape 142 Rape of women and men For section 1 of the Sexual Offences Act 1956 (rape of a woman) there shall be substituted the following section - “Rape of woman or man (1) It is an offence for a man to rape a woman or another man. (2) A man commits rape if - (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.” 105. A careful perusal of the aforesaid provision would show that the law in the UK was made, firstly, gender-neutral and, secondly, did away with the possibility of the Common Law Doctrine being used as a defence by excising from the statute the word "unlawful" which preceded the expression "sexual intercourse". 106. A careful perusal of the aforesaid provision would show that the law in the UK was made, firstly, gender-neutral and, secondly, did away with the possibility of the Common Law Doctrine being used as a defence by excising from the statute the word "unlawful" which preceded the expression "sexual intercourse". 106. Unfortunately, for whatever reason, the shifting of sands of time went unnoticed, as the legislative history of this country would show, qua MRE in IPC. However, the incursion caused by deviant and extremely hard cases, both, in the UK and India weighed with the lawmakers even when the first draft of the IPC was considered before its enactment. Section 375, as it exists today, in its earlier avatar i.e., in the draft IPC was referred to as Clause 359. This Clause 359 read thus : “OF RAPE 359. A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: First.- Against her will. Secondly.- Without her consent, while she is insensible. Thirdly.- With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly.- With her consent, when the man knows that her consent is given because she believes that he is a different man to whom she is or believes herself to be married. Fifthly.- With or without her consent, when she is under nine years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife is in no case rape.” [Emphasis is mine.] 107. One would notice that Clause 359 did not define sexual intercourse as widely as it obtains on the statute presently. Furthermore, it reinforced the Common Law Doctrine without making room for girl-children, who in our country, at that point in time, married at a very young age. 107.1. Besides this, I may add more as a trivia rather than anything else that, although Englishmen are known for their exactitude and precision, the Exception used the expression "own wife" instead of "just wife" which, if nothing else, was a surplusage. 107.2. 107.1. Besides this, I may add more as a trivia rather than anything else that, although Englishmen are known for their exactitude and precision, the Exception used the expression "own wife" instead of "just wife" which, if nothing else, was a surplusage. 107.2. That apart, “Note B. on the Chapter of General Exceptions” was suggestive of the fact that the lawmakers of that time had decided to incorporate the exception in Clause 359 based on a wrongly held notion, as I view it, that amongst various conjugal rights, the husband had a unhindered right to have sex with his wife whether or not she consented to it. The relevant part of the said note is extracted hereafter : “Note B. ON THE CHAPTER OF GENERAL EXCEPTIONS This chapter has been framed in order to obviate the necessity of repeating in every penal clause a considerable number of limitations. Some limitations relate only to a single provision, or to a very small class of provisions. Thus the exception in favour of true imputations on character (clause 470) is an exception which belongs wholly to the law of defamation, and does not affect any other part of the Code. The exception in favour of the conjugal rights of the husband (clause 359) is an exception which belongs wholly to the law of rape, and does not affect any other part of the Code. Every such exception evidently ought to be appended to the rule which it is intended to modify. …” [Emphasis is mine.] 108. Fortunately, the draft, as it appears, was put up for further scrutiny which resulted in a report being submitted by the Indian Law Commissioners. Paragraphs 444 and 445 of the report are revealing as they hemmed in the impact to some extent (I would say minuscule extent), where a child - bride was concerned. The said paragraphs are extracted hereafter : “444. Again Mr. Thomas objects to the “exception which declares that sexual intercourse by a man with his own wife is in no case rape.” He says, “I doubt the propriety of this exception. The early age at “which children are married and are in the eye of the law wives, makes “it necessary that protection should be given to them by the law till “they are of age to reside with their husbands. The early age at “which children are married and are in the eye of the law wives, makes “it necessary that protection should be given to them by the law till “they are of age to reside with their husbands. I remember a case of “forcible violation and great injury to a child where the offender was “the husband.” Mr. Hudleston and Mr. A.D. Campbell concur with Mr. Thomas. 445. Although marriages are commonly contracted among Mahomedans and Hindoos before the age of puberty on the part of the female, yet usually the bride remains in the house of her parents till she is of a fit age for the consummation of the marriage, and it may be fairly presumed that the parents, her natural guardians, will in general take care to prevent abuse in this respect. There may however be cases in which the check of the law may be necessary to restrain men from taking advantage of their marital right prematurely. To meet such cases it may be advisable to exclude from the exception cases in which the wife is under nine years of age. Instances of abuse by the husband in such cases will then fall under the 5th description of rape.” [Emphasis is mine.] 109. It is this which resulted in providing in the first statutory avatar of Section 375 albeit in 1860, with a modification, that consent was immaterial where a man indulged in coitus with his wife, who was under 10 years of age, as against nine years provided in clause 359. However, the Common Law Doctrine which appeared in Clause 359 continued to subsist, save and except, that the exception would not operate where the wife was under 10 years of age. Clause 359 [which morphed into Section 375], when incorporated in IPC in 1860, read as follows : “375. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man, to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under ten years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” “Exception. Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape.” [Emphasis is mine.] 110. At this juncture, it would be also relevant to note as to how Section 376 read when it was incorporated in the statute for the first time. This is relevant from the point of view of the argument put forth before us by learned counsel for the parties with regard to "high minimum mandatory sentence" of 10 years obtaining presently in Section 376(1) of the IPC. “376. Whoever commits rape shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” 111. As noticed above, Section 375 in its original form made no distinction based on age between a child who was subjected to forced sexual intercourse whether by a husband or a stranger; the age threshold, however, was kept under 10 years of age. This threshold was increased with the amendment brought about in 1983 (Act 43 of 1983) when the age threshold provided in the sixth circumstance, appended to Section 375, for a child, was raised to “under sixteen years of age”, even though insofar as the child-bride was concerned, the threshold was kept at “under fifteen years of age” : "Sixthly. - With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. - With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” [Emphasis is mine.] 112. Besides this, the other relevant change which was brought about by Act 43 of 1983 was that a fifth circumstance was added which, in effect, legislatively disregarded consent given by a woman on account of the state of her mind due to unsoundness, intoxication, administration of stupefying or unwholesome substance administered either by the offender personally or through another which disabled the victim from understanding the nature and consequences of the act to which she had consented. Resultantly, what was placed under “fifthly” earlier i.e., the provision which dealt with the immateriality of consent said to have been granted by a child was renumbered as “sixthly”. 113. The threshold vis-à-vis an unmarried girl-child who was subjected to sexual acts was raised by Act 13 of 2013 by enhancing the threshold to “under eighteen years of age”. The other relevant amendments brought about by Act 13 of 2013 which included the expansion of the definition of rape by inserting Clauses (a) to (d) in Section 375 (which were descriptive of various sexual acts that a victim could be subjected to) and insertion of certain other provisions like Explanations 1 and 2 (and the accompanying proviso) and Exception 1; with MRE being renumbered as Exception 2. 113.1. To complete the narrative concerning the history of rape law, it needs to be noticed that via the Criminal Law (Amendment) Act, 2018 (No. 22 of 2018), amendments were brought about qua certain provisions of the IPC, Evidence Act, the Code and the POCSO Act. 114. What exacerbated the dissonance between a girl-child who was subjected to a sexual act within marriage as against the one who became a victim of the act outside marriage was that for the former the threshold remained as “under fifteen years of age”, while for the latter the threshold was increased to “under eighteen years of age”. 115. 114. What exacerbated the dissonance between a girl-child who was subjected to a sexual act within marriage as against the one who became a victim of the act outside marriage was that for the former the threshold remained as “under fifteen years of age”, while for the latter the threshold was increased to “under eighteen years of age”. 115. This anomaly was not corrected till the Supreme Court rendered its judgment in Independent Thought whereby the threshold for a child bride who is subjected to sexual intercourse by her husband was raised from “under fifteen years of age” to “under eighteen years of age”. 116. In Independent Thought, the Supreme Court squarely considered the ambit of MRE, albeit, in the context of a child-bride as a result of incongruity obtaining as to the threshold age as provided in the sixth circumstance and Exception 2 appended to Section 375 and the POCSO Act. 116.1. Although the narration of submissions recorded hereinabove would show that the petitioners have relied upon Independent Thought to demonstrate that irrespective of the issue at hand, in that case, the observations made therein concerning MRE would apply even to a married woman aged 18 years and above, this position has been contested by counsel for the intervenors who propound that the status quo should be maintained till such time the legislature intervenes in the matter. As to whether the observations in Independent Thought would apply given the disclaimers made by the learned judges who authored the judgment is an aspect that I would discuss in the latter part of the judgment. 117. For the moment, what I need to deal with immediately is the argument advanced by Messrs Sai Deepak and Kapoor and others who support their line of argument, which is, whether this court should, at all, examine the issue at hand on account of its inability to entertain various stakeholders, I presume this argument is made given the nature of court proceedings, and, thus, perceived inability of this court to assimilate various views and counter-views. An exercise which, according to them, can be performed only by the executive and/or the legislature. To put it pithily, the argument is that if the court were to exercise powers under Article 226 and strike down the MRE, it would in effect carry out a legislative act and, thus, blur the Doctrine of Separation of Powers. An exercise which, according to them, can be performed only by the executive and/or the legislature. To put it pithily, the argument is that if the court were to exercise powers under Article 226 and strike down the MRE, it would in effect carry out a legislative act and, thus, blur the Doctrine of Separation of Powers. In this context, it is argued in particular by Mr Sai Deepak that it would deprive the "Bhartiya Legislature" of the right to examine the issue threadbare, albeit, after undertaking a consultative exercise by involving myriad stakeholders. In sum, the call is for exercising "judicial restraint". II. Separation of Powers 118. To my mind, this argument fails to recognize the fundamental concepts which are subsumed in our Constitution. The framers of the Indian Constitution attempted to draw the best from various constitutions and constituent documents available to them at the cusp of Independence. Some of the models that were available to the framers of our Constitutions at that juncture were (i) the United States (US) Constitution; (ii) the Constitution Acts enacted by the British Parliament establishing Federal Constitutions not only for India but countries like Canada and Australia; importantly, these documents drew inspiration from the American experience. [See H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol. 1, 1A.9 at page 158.] 118.1. The US Constitution adopted the Doctrine of Separation of Powers, albeit, in the mistaken belief that English precedent was being followed. The Constitution of Canada, Australia and to a limited extent the Government of India Act, 1935 provided for an executive who was responsible to the legislature. Thus, the framers of the Indian Constitution adopted a system of Parliamentary Executive in preference to a Presidential system adopted in the US. Notably, in the US, the President is not responsible to the legislature. The legislative business is carried out by Congress. The President is answerable only to the people who elected him. His Cabinet comprises persons who are referred to as Secretaries. Secretaries are appointed and removed by the President whereas, in India, the head of a successful party is, ordinarily, appointed as the Prime Minister whose Cabinet consists of Ministers, who are members of one or other House of the Parliament. His Cabinet comprises persons who are referred to as Secretaries. Secretaries are appointed and removed by the President whereas, in India, the head of a successful party is, ordinarily, appointed as the Prime Minister whose Cabinet consists of Ministers, who are members of one or other House of the Parliament. The only exception to this prescription is when a person, who is appointed as a Minister in the Union Government and is not a member of either House of the Parliament, he is required to get elected to one or the other House of the Parliament within six months as otherwise, he would cease to be a Minister. [See Article 75(5) of the Constitution.] Although, like in the US, we have a President, who is the Commander-in-Chief of the armed forces, the comparison ends there. The President in our country acts like the sovereign of Great Britain on the advice of his Ministers who are responsible to the Parliament and, who, wield the real executive power. 119. To appreciate the point at hand, it is important to remember that the Doctrine of Separation of Powers and the Doctrine that the Legislatures are Delegates of the People [which is the basic doctrine of the US Constitution] do not form part of the Constitution of India. The framers of our Constitution rejected the Presidential form of Government, that is, an Executive independent of the Legislature and instead adopted the British model of government that is an Executive/ Cabinet which is responsible to and removable by the Legislature. [See H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol. I, 1A.10 & 13 at pages 158 & 159.] 120. That said, while the framers of our Constitution did not adopt the Presidential system of government, we did adopt other features of the US Constitution which were not found in the Constitutions prevalent in Canada and Australia. For instance, aspects which form part of the Bill of Rights in the US were made part of the Chapter on Fundamental Rights in the Indian Constitution. For instance, aspects which form part of the Bill of Rights in the US were made part of the Chapter on Fundamental Rights in the Indian Constitution. Our Preamble employs language which is somewhat similar to the American Constitution and accordingly our Constitution opens with the words : "WE, THE PEOPLE OF INDIA…" And likewise, insofar as the country's social and economic objectives were concerned, these were not restricted just to the Preamble but following the example of Irish Free State, they were provided in Part IV of the Constitution and titled as "Directive Principles of the State Policy" which were declared fundamental in the governance of the country but were not made enforceable. [See H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol. I, 1A.11 at pages 158 & 159.] 121. The aforesaid broad framework of our Constitution is captured by Chief Justice B.K. Mukherjea [as he then was] in a decision rendered by him in Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225 : “12. It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. xxx xxx xxx 14. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature ? The executive Government, however, can never go against the provisions of the Constitution or of any law. xxx xxx xxx 14. In India, as in England, the executive has to act subject to the control of the legislature; but in what way is this control exercised by the legislature ? Under article 53(1) of our Constitution, the executive power of the Union is vested in the President but under article 75 there is to be a Council of Ministers with the Prime Minister at the head to aid advise the President in the exercise of his functions. The president has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet. The same provisions obtain in regard to the Government of States; the Governor or the Rajpramukh, as the case may be, occupies the position of the head of the executive in the State but it is virtually the council of Ministers in each State that carries on the executive Government. In the Indian Constitution, therefore, we have the same system of parliamentary executive as in England and the council of Ministers consisting, as it does, of the members of the legislature is, like the British Cabinet, "a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part." The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. xxx xxx xxx 19. …As we have said already, the executive Government are bound to conform not only to the law of the land but also to the provisions of the Constitution. The Indian Constitution is a written Constitution and even the legislature cannot override the fundamental rights guaranteed by it to the citizens. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. ….” [Emphasis is mine.] 122. Consequently, even if the acts of the executive are deemed to be sanctioned by the legislature, yet they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners guaranteed under Part III of the Constitution. ….” [Emphasis is mine.] 122. Following the same ethos as was captured in Ram Jawaya Kapur's case, a Constitution Bench of the Supreme Court in Kalpana Mehta & Ors. v. Union of India & Ors., (2018) 7 SCC 136, made some pointed observations on Separation of Powers and the role of the Constitutional Courts in that framework. The question that fell for consideration was: whether the court could place reliance upon a report of the Parliamentary Standing Committee while exercising jurisdiction under Article 32 and 136 of the Constitution. Hon'ble Dr Justice D.Y. Chandrachud in his concurring judgment after adverting to a whole host of material veered to the view that separation of powers was a "nuanced doctrine". It involved “division of labour” and “checks and balances”. Importantly, it was emphasized that the Indian Constitution, while recognizing the doctrine of separation of powers, had not adopted the same in its absolute rigidity. As to how the doctrine of separation of powers is to play out in real terms is best understood by adverting to the following dicta contained in the judgment : "246. In I.R. Coelho v. State of T.N. [I.R. Coelho v. State of T.N., (2007) 2 SCC 1 ], the Court underlined the functional complementarity between equality, the rule of law, judicial review and separation of powers : (SCC p. 105, para 129) “129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.” xxx xxx xxx 255. Parliament and the State Legislatures legislate. The executive frames policies and administers the law. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.” xxx xxx xxx 255. Parliament and the State Legislatures legislate. The executive frames policies and administers the law. The judiciary 36 In short “Kalpana Mehta” decides and adjudicates upon disputes in the course of which facts are proved and the law is applied. The distinction between the legislative function and judicial functions is enhanced by the basic structure doctrine. The legislature is constitutionally entrusted with the power to legislate. Courts are not entrusted with the power to enact law. Yet, in a constitutional democracy which is founded on the supremacy of the Constitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution. Entrustment to the judiciary of the power to test the validity of law is an established constitutional principle which co-exists with the separation of powers. …. …256. This discussion leads to the conclusion that while the separation of powers, as a principle, constitutes the cornerstone of our democratic Constitution, its application in the actual governance of the polity is nuanced. The nuances of the doctrine recognise that while the essential functions of one organ of the State cannot be taken over by the other and that a sense of institutional comity must guide the work of the legislature, executive and judiciary, the practical problems which arise in the unfolding of democracy can be resolved through robust constitutional cultures and mechanisms. The separation doctrine cannot be reduced to its descriptive content, bereft of its normative features. Evidently, it has both normative and descriptive features. In applying it to the Indian Constitution, the significant precept to be borne in mind is that no institution of governance lies above the Constitution. No entrustment of power is absolute.” ;[Emphasis is mine.] 123. The separation doctrine cannot be reduced to its descriptive content, bereft of its normative features. Evidently, it has both normative and descriptive features. In applying it to the Indian Constitution, the significant precept to be borne in mind is that no institution of governance lies above the Constitution. No entrustment of power is absolute.” ;[Emphasis is mine.] 123. Thus, unlike the US Constitution, our Constitution is not based on rigid separation of powers, although, it provides for a separate Legislature, the Executive and the Judiciary. Illustratively, the Supreme Court has advisory jurisdiction under Article 143 of the Constitution and likewise, legislative power is vested in the judiciary. [See Sections 122 and 129 of the CPC; also see H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol. III, paragraph 25.42 at page 2636.] 124. Similarly, under the Constitution, the Legislature also exercises quasi judicial powers. [See Tenth Schedule read with Article 102(2) of the Constitution.] These provisions concern the disqualification of a person who is a Member of the Parliament on the ground of defection. The decision concerning such persons rests with the Chairman or Speaker of the House, as the case may be. [See Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595 .] III Judicial Restraint 125. Having, thus, broadly, established that the rigid separation of powers doctrine does not apply in the Indian context, what is required to be examined is whether this court should, as contended by Messrs Sai Deepak and Kapoor, refrain from examining the contention of the petitioners that the impugned provisions (which includes MRE) are violative of married women's fundamental rights under Article 14, 15, 19(1)(a) and 21 of the Constitution. The argument is suggestive of the fact that the court does not have the jurisdiction or the requisite wherewithal to examine the grievance articulated by the petitioners. 125.1. Article 13 of the Constitution, in my view, enjoins the Constitutional court to declare any law, which is in force in India, whether enacted before the commencement of the Constitution or thereafter, “void” if it is found to be inconsistent or takes away and/or abridges the rights conferred by Part III of the Constitution. The expression "inconsistent" found in Clause (1) and likewise, the expression "in contravention" found in Clause (2) of Article 13 mean one and the same thing. The expression "inconsistent" found in Clause (1) and likewise, the expression "in contravention" found in Clause (2) of Article 13 mean one and the same thing. The expression "inconsistent" applies to laws enacted prior to the Constitution being adopted and being brought into force while the expression "in contravention" applies to laws which are enacted after the Constitution was adopted and brought into force. Between them, they cover the entire field and, thus, empower the court to declare void any law which violates the person's fundamental rights. The only exception being any amendment made to the Constitution under Article 368; Article 13 does not apply to such situation. [See Article 13(4).] The remedies for enforcing fundamental rights are provided in Article 32 [which falls in Part III of the Constitution] and Article 226 which confers power on the High Courts to issue various writs not only for the enforcement of rights conferred under Part III but also for "any other purpose". Clause (1) of Article 226 is a non-obstante clause which confers this power on the High Courts. Therefore, to suggest that the issue at hand can only be dealt with by the Executive of the day or the Legislature is unpersuasive. The submission that the issues involved concern a policy decision which, in turn, requires wide-ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the court has before it is a legal issue i.e., whether or not the impugned provisions (which includes MRE) violate a married woman's fundamental rights conferred under the Constitution. 126. The argument in substance is that the Court must exercise judicial self-restraint concerning the matter at hand and leave the working out of remedies for a married woman to the legislative wisdom. The further iteration of this argument is, that this Court should allow the Executive and/or the Legislature (in consonance with the Doctrine of Separation of Powers) to examine the issue in the absence of judicially discoverable and manageable standards for resolving the lis. It is thus emphasised that this issue cannot be decided without initial policy formulation. 126.1. The further iteration of this argument is, that this Court should allow the Executive and/or the Legislature (in consonance with the Doctrine of Separation of Powers) to examine the issue in the absence of judicially discoverable and manageable standards for resolving the lis. It is thus emphasised that this issue cannot be decided without initial policy formulation. 126.1. The thrust of the submissions made in this behalf by the intervenors is that if the Court were to adjudicate the issue at hand, it would take the power out of the hands of the people, which is, represented by the Parliament and, thus, would seriously diminish its standing. 126.2. These submissions tend to suggest that on account of the factors adverted to above, the aspects involved in the instant matters should be left best to be handled, by the Executive who in turn would engage in a consultative process being in effect the political party having majority in the Parliament. In other words only when the consultative process culminates in a legislative intervention can a solution be found qua the issues raised in the writ petitions. In an ideal circumstance this route could perhaps have been adopted but the grief that MRE has caused over the years impels me to deal with it as legal cause [which it is] seeking declaration of rights and the remedies that flow therefrom. Therefore, these submissions, in my opinion, have no merit. 126.3. There are enough and more judicial precedents which clearly establish that even actions which assail sovereign or legislative acts have been entertained by Courts whenever they impinge upon fundamental rights of the citizen. Therefore, the submission that intercession by court will diminish its standing is, in my view, a submission that is clearly flawed. As a matter of fact "...National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them nugatory through the interposition of subterfuges." [See Baker v. C Carr, 1962 SCC OnLine US SC 40, at page 711, Clark, J.; also see A.K. Roy v. Union of India, (1982) 1 SCC 271 , paragraphs 26-27; and Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85 , paragraph 45.] 127. Furthermore, for my part, this submission also represents, if I may say so, a half-truth. Furthermore, for my part, this submission also represents, if I may say so, a half-truth. If it was a question concerning an economic policy or economic theory, I would easily defer to the wisdom of the Executive of the day and/or the Legislature as it is essentially experimental and requires a "play in the joints". [See R.K. Garg v. Union of India, (1981) 4 SCC 675 .] As alluded to above, the Doctrine of Judicial Self-Restraint is not applicable in cases which involve the determination of controversies that involve alleged infractions of fundamental rights by the State, in the context of violation of civil rights/human rights. Side-stepping such issues would be akin to the court seeking "an alibi" for refusing to decide a legal controversy, which it is obliged in law to decide. The perceived "harm to its reputation or prestige" can be of little consequences. [See H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol.III, paragraph 25.46, at page 2640.] 128. Thus, "shunning responsibility" to decide what falls within the ken of the court and leaving it to the Executive and/or the Legislature, in my view, would constitute abandonment of the duty and the role which the Constitution has defined for the courts. Courts are engaged in the job of adjudication which involves the application of the law which includes the provisions of the Constitution to a given set of facts. Areas that the courts cannot venture into are carved out by the law. While I do not doubt that the issues at hand involve substantial questions of law which require examination in the light of relevant statutes and the provisions of the Constitution, there is to my mind, no better forum to rule on these issues than the court itself. 128.1. The contention advanced by Messrs Sai Deepak and Kapoor as also those who support this argument does not impress me and, hence, is rejected. 129. Having cleared the deck, let me straight away deal with the elephant in the room i.e., why, according to me, the impugned provisions including MRE are problematic. IV Ambit of Section 375 of IPC 130. This would require one, to layout, in the first instance, the broad contours of Section 375. A close perusal of Section 375[[375. 129. Having cleared the deck, let me straight away deal with the elephant in the room i.e., why, according to me, the impugned provisions including MRE are problematic. IV Ambit of Section 375 of IPC 130. This would require one, to layout, in the first instance, the broad contours of Section 375. A close perusal of Section 375[[375. Rape.- A man is said to commit "rape" if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly. When she is unable to communicate consent. Explanation 1. For the purposes of this section, "vagina" shall also include labia majora. Explanation 2. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly. When she is unable to communicate consent. Explanation 1. For the purposes of this section, "vagina" shall also include labia majora. Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.A medical procedure or intervention shall not constitute rape. Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]would show that it firstly, describes various sexual acts in Clauses (a) to (d) and then lists out the circumstances in which those sexual acts would result in the commission of the offence of rape. Pertinently, Clauses (a) to (d) do not confine the scope of sexual acts, described therein, to a situation where the offender himself commits those acts but also extends the ambit of those very acts when the victim is made to perform the said acts with "any other person". 130.1. The “circumstances” that have been listed out, in which, sexual acts described in Clauses (a) to (d) will constitute rape, are seven in number. Besides this, the section includes two explanations i.e., Explanations 1 and 2. With Explanation 2, a proviso is appended. In addition thereto, two exceptions are carved out i.e., Exceptions 1 and 2. Exception 2 i.e., MRE is in the crosshair of instant challenge laid before the Court. 130.2. Therefore, the import of the provision i.e., Section 375, at present, is as follows: That one or more sexual acts referred to in Clauses (a) to (d) would constitute rape if the victim is a woman aged 18 years and above finds herself in one or more of the seven circumstances set forth therein. 130.3. The first circumstance alludes to situation when sexual act(s) are committed against her will, which, to my mind, would mean that while the woman-victim is in possession of her senses and, therefore, even though capable of giving her consent, does not give her consent to participation in the sexual act. 130.3. The first circumstance alludes to situation when sexual act(s) are committed against her will, which, to my mind, would mean that while the woman-victim is in possession of her senses and, therefore, even though capable of giving her consent, does not give her consent to participation in the sexual act. In other words, the expression “against her will”, involves an element of resistance and opposition by the victim. 130.4. The second circumstance i.e., "without her consent", in my opinion, would be an act which is not accompanied by intelligent deliberation, as to the nature and consequences of the sexual act or is based on a false misrepresentation of a fact at the time when the act was committed or by subjecting the victim to “inevitable compulsion” such as fear of injury or death. See Deelip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 ; Chhotey Lal. Also see Section Therefore, there may be a certain amount of overlap between the first and the second circumstance. The consent given in inevitable circumstances which tantamount to submission would overlap with the third and fifth circumstance. 130.5. The third circumstance addresses a situation where, although, the woman victim is said to have given her consent, the law disregards it if it is obtained by putting the woman-victim or any person that she is interested, in fear of death or hurt. 130.6. Likewise, in the fourth circumstance as well, the law disregards the woman victim's consent when the offender knows that he is not the woman victim's husband and while giving consent, she believes that the offender is another person to whom she is or believes herself to be lawfully married. The instance that, perhaps, could fall in this circumstance could be, say, the case of identical twins. 130.7. The fifth circumstance where the law disregards the woman’s consent if, at the time when the woman-victim gives her consent, she is found to be unsound of mind or intoxicated or has been administered by the offender personally or through another any stupefying or unwholesome substance, disabling her from understanding the nature and consequences of the act to which she is said to have given consent. 130.8. 130.8. Thus, in situations covered by the fourth and fifth circumstances, even though the sexual acts are committed with the consent of the concerned woman, they are disregarded, as in one case the consent is obtained by putting the woman-victim in fear while in the other situation i.e., the fourth circumstance, the offender employs a deception of a particular kind. 130.9. The sixth circumstance covers a situation where a girl child is subjected to sexual acts, adverted to in Clauses (a) to (d) of Section 375. The law in such situations considers the girl victim's consent immaterial or of no consequences given the fact that she is under 18 years of age. 130.10. The seventh circumstance is self-explanatory as it covers the situation where the woman victim is unable to communicate consent. 131. The aforementioned circumstance as also the other circumstances, adverted to in Section 375, has to be read with Explanation 2 which provides as to what would constitute consent. According to Explanation 2, consent means an unequivocal voluntary agreement whereby a woman communicates her willingness to participate in a specific sexual act and this communication can be made via words, gestures or any form of verbal or non-verbal communication. What is important is that the proviso makes it amply clear that only because a woman does not physically resist the act of penetration, shall not, because of this fact alone, be construed that the woman-victim consented to sexual activity. Thus, mere passivity or lack of resistance to a sexual act cannot be construed as consent. 131.1. To deduce consent, one would have to look at the forms of communications alluded to in Explanation 2. 131.2. Explanation 1 adverts to the fact that the vagina would include labia majora which is the two outer folds of the vulva i.e., the external part of the female genitalia. It appears that Explanation 1 has been incorporated to dilate and perhaps remove the possibility of a defence being raised that the sexual activity, described in Clauses (a) to (d) in Section 375, did involve the concerned female's genitalia [i.e., the vagina] and hence did not 90 of IPC amounting to misconception of fact. constitute rape. 131.3. Exception 1 excludes medical procedure or intervention from the offence of rape. 132. constitute rape. 131.3. Exception 1 excludes medical procedure or intervention from the offence of rape. 132. Exception 2 [i.e., MRE], in effect, saves from the rigour of the main provision which deals with the offence of rape, one category of offender (i.e., a husband) even though he subjects his wife who is not under 18 years of age to sexual acts, described in Clauses (a) to (d) of Section 375. 133. Sub-section (1) of Section 376 provides for punishment for rape, which, as prescribed, is rigorous punishment with a mandatory minimum sentence of 10 years, with a possibility of it being extended to imprisonment for life besides being mulct with a fine as well. The sub-section (2) of Section 376 covers cases of aggravated rape which include rape committed in custody39, by a relative40, guardian or teacher or by a person in a position of trust or authority, and on women placed in vulnerable circumstances41 accompanied by an element of depravity. In cases covered under Section 376(2), the minimum mandatory sentence is 10 years which can extend to imprisonment for life; which, as the provision goes on to clarify, means imprisonment for the remainder of that person's natural life, in addition to, being burdened with fine. 133.1. Besides this, the other forms of aggravated rape are, inter alia, covered under Sections 376A (causing death resulting in a persistent vegetative state of the victim) and 376D (gang-rape). The punishment prescribed for these offences is much harsher. Under Section 376A, even a death sentence can be imposed on the offender. 134. Section 376B (read with explanation) concerns sexual acts, as 39 Section 376(2)(a) to (e) 40 Section 376(2)(f) 41 Section 376(2)(g) to (n) described in Clauses (a) to (d) to Section 375 which, if a husband subjects his wife to, while they are living separately under a decree of separation or otherwise, albeit, without her consent, is a punishable offence. The punishment though, which the legislature prescribes for an offence covered under the said provision is less rigorous. The prescribed minimum mandatory sentence of imprisonment is two years, which may extend to seven years, accompanied by imposition of a fine. 135. Thus, a careful perusal of the aforementioned provisions, in particular Section 375, would demonstrate the following. 135.1. The punishment though, which the legislature prescribes for an offence covered under the said provision is less rigorous. The prescribed minimum mandatory sentence of imprisonment is two years, which may extend to seven years, accompanied by imposition of a fine. 135. Thus, a careful perusal of the aforementioned provisions, in particular Section 375, would demonstrate the following. 135.1. Section 375 is concerned with the acts described in Clauses (a) to (d) which would morph into an offence of rape if committed in the seven circumstances, alluded to therein. Absent the seven circumstances, the acts, described in Clauses (a) to (d) of Section 375, do not acquire a criminal hue. 135.2. A close reading of the circumstances would reveal that except for the sixth circumstance (which concerns a girl-child under 18 years of age), willingness (as in the first circumstance) and consent (as in the second to fifth and seventh circumstance)- form the basis of separating acts which are lawful from those which are construed as unlawful. The circumstances are clearly agnostic to the relationship between the offender and the woman victim. Therefore, whether the offender is a stranger or a partner in a live-in relationship, he would fall within the purview of the offence of rape if he commits, sexual acts with a woman victim, as described in Clauses (a) to (d) of Section 375, under the seven circumstances, adverted to hereinabove. Consequentially, every woman victim, except a married woman, has the right to trigger criminal proceedings against the offender if she is subjected to forced sexual activity. 135.3. The firewall that is created via Exception 2 to Section 375/MRE vis-à-vis an offending husband, who subjects his wife to a non-consensual sexual act, is, thus, the main focus of the petitioners challenge in the writ petitions. V In defence of MRE 136. In defence of the impugned provisions, in particular MRE, the following broad arguments are advanced. (i) First, the distinction that MRE makes between married and unmarried women is constitutionally viable. (ii) Second, the IPC itself contains provisions which are relationship centric. (iii) Third, the legislature has provided various avenues to enable a victim to seek redressal against spousal violence. In this context, reference was made to Section 376B and Section 498A of the IPC, as also, to the provisions of the D.V. Act. (ii) Second, the IPC itself contains provisions which are relationship centric. (iii) Third, the legislature has provided various avenues to enable a victim to seek redressal against spousal violence. In this context, reference was made to Section 376B and Section 498A of the IPC, as also, to the provisions of the D.V. Act. (iv) Fourth, the husband has a “conjugal expectation” to inter alia have sex with his wife. (v) Fifth, while the legislature does not condone spousal sexual violence, it chooses not to label the act as rape as it seeks to protect families including progeny. In other words, the State has a legitimate interest in protecting the institution of marriage. (vi) Sixth, there is a palpable and real apprehension that striking down MRE could result in the lodgment of false cases. (vii) Seventh, if the husband is prosecuted for marital rape, it would result in the State invading a married couple’s private space. Being a closed space, it would be well-nigh impossible for the State to collect evidence concerning the allegation of rape. (viii) Eighth, the striking down of MRE would create a "new offence” by criminalizing an act which up until now was not construed as an offence. The Court is not vested with such power, this power is reserved well and truly for the legislature. V(i) Constitutional viability of classification between married and unmarried women in the context of Article 14. 137. To answer the question as to whether a classification based on the relationship between the offender and victim is constitutionally viable, one would have to examine whether the classification has an intelligible differentia with the object which is sought to be achieved. There can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape; this principle is the bedrock on which Section 375 of the IPC is founded. It cannot, perhaps, also be doubted that there is a differentia between married, separated and unmarried couples. However, what needs to be established once the differentia is accepted is : whether the differentia between married and unmarried couples has a rational nexus with the object, which the main provision seeks to achieve, that is, protecting a woman from being subjected to a sexual act against her will or her consent. However, what needs to be established once the differentia is accepted is : whether the differentia between married and unmarried couples has a rational nexus with the object, which the main provision seeks to achieve, that is, protecting a woman from being subjected to a sexual act against her will or her consent. MRE does not meet the nexus test as it grants impunity to an offender based on his relationship with the victim. In other words, it grants impunity qua an act which would otherwise fall within the offence of rape under the main provision [i.e., Section 375] only for the reason it is committed within the bounds of marriage. 137.1. The classification, in my opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is "real rape"[Kersti Yllo and M. Gabriela Torres, Marital Rape -Consent, Marriage and Social Change in Global Context] and that the same act within marriage is anything else but rape. A 'chaste woman[Kersti Yllo and M. Gabriela Torres, Marital Rape -Consent, Marriage and Social Change in Global Context: Prologue - Understanding Marital Rape in Global Context, Kersti Yllo, page 1] or a young girl - is more likely to be considered a 'victim'; but not a married woman. A prior sexual relationship is regarded as a reasonable defence because consent is assumed; but in the case of a married woman, it is not even put to test. Sex- worker has been invested with the power to say "no"; by the law; but not a married woman. In a gang rape involving the husband of the victim, the co-accused will face the brunt of the rape law; but not the offending husband only because of his relationship with the victim. A married woman's ability to say "no" to sexual communion with her husband when he is infected with a communicable disease or she is herself unwell finds no space in the present framework of rape law. Thus the rape law as it stands at present is completely skewed insofar as married women are concerned. To a woman who is violated by her husband by being subjected to the vilest form of sexual abuse (i.e., rape) it is no answer to say that the law provides her other remedies. When marriage is a tyranny, the State cannot have a plausible legitimate interest in saving it. To a woman who is violated by her husband by being subjected to the vilest form of sexual abuse (i.e., rape) it is no answer to say that the law provides her other remedies. When marriage is a tyranny, the State cannot have a plausible legitimate interest in saving it. In every sense, MRE, in my view, violates the equality clause contained in Article 14 of the Constitution. Article 14 of the Constitution not only guarantees that the State shall not deny to any person equality before the law but also guarantees that every person within the territory of India will have equal protection of the laws. MRE with one stroke deprives nearly one-half of the population of equal protection of the laws. The classification between married and unmarried women in the context of MRE (and what is observed hereinabove) is without doubt unreasonable. The test as to what is construed unreasonable by the courts in the context of a provision in the legislation or subordinate legislation is articulated in Kruse v. Johnson, (1898) 2 QB 91 which followed an earlier Privy Council judgment rendered in Slattery v. Naylor, (1888) 13 App. Cas. 446: "….. I do not mean to say that there may not be cases in which it would be the duty of the court to condemn bye-laws, made under such authority as these were made, as invalid because[ they were] unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclose bad faith; if they involve such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court may well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there.” [Emphasis is mine.] 138. A bye-law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there.” [Emphasis is mine.] 138. If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for law makers could never have intended to make such a law. The Kruse v. Johnson test has been cited with approval by the Supreme Court in the following cases : (i) Trustees of the Port of Madras v. Aminchand PyareLal, (1976) 3 SCC 167 . [See paragraph 23 at page 178.] (ii) Maharashtra State Board of Secondary & Higher Secondary Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors., (1984) 4 SCC 27 . [See paragraph 21 at pages 49 - 50.] (iii) Shri Sitaram Sugar Co. Ltd. & Anr. v. Union of India & Ors., (1990) 3 SCC 223 . [See paragraph 47 at page 251.] (iv) Supreme Court Employees' Welfare Association v. Union of India & Anr., (1989) 4 SCC 187 . 138.1. The classification, as is well established, should have a "causal connection" between what is sought to be classified and the object of the provision or, the statute. Over-emphasis on the classification test bears the risk of giving precedence to form over substance. The following observations made by Hon'ble Dr Justice D.Y. Chandrachud in Navtej Singh Johar capture the essence of the width and amplitude of Article 14 when applied to real-life situations : “408. A litany of our decisions - to refer to them individually would be a parade of the familiar - indicates that to be a reasonable classification under Article 14 of the Constitution, two criteria must be met: (i) the classification must be founded on an intelligible differentia; and (ii) the differentia must have a rational nexus to the objective sought to be achieved by the legislation. There must, in other words, be a causal connection between the basis of classification and the object of the statute. There must, in other words, be a causal connection between the basis of classification and the object of the statute. If the object of the classification is illogical, unfair and unjust, the classification will be unreasonable. 409. Equating the content of equality with the reasonableness of a classification on which a law is based advances the cause of legal formalism. The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism buries the life-giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values - of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in state action. As our constitutional jurisprudence has evolved towards recognizing the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavor and in every facet of human existence.”[Emphasis is mine.] 139. The Supreme Court made somewhat similar observations while examining the constitutional validity of Section 2(q) of the D.V Act which excluded from the definition of the respondent (against whom an action is filed), all persons except an adult male from the purview of the Act in Harsora v. Harsora : “32. Article 14 is in two parts. The expression “equality before law” is borrowed from the Irish Constitution, which in turn is borrowed from English law, and has been described in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 , as the negative aspect of equality. Article 14 is in two parts. The expression “equality before law” is borrowed from the Irish Constitution, which in turn is borrowed from English law, and has been described in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 , as the negative aspect of equality. The “equal protection of the laws” in Article 14 has been borrowed from the 14th Amendment to the U.S. Constitution and has been described in the same judgment as the positive aspect of equality namely the protection of equal laws. Subba Rao, J. stated: (SCR pp. 34-35 : AIR p. 1134, para 26 “26. … This subject has been so frequently and recently before this court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that every one is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is well-nigh impossible to make laws suitable in their application to all the persons alike. So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made.” 33. In Lachhman Dass v. State of Punjab, (1963) 2 SCR 353 , Subba Rao, J. warned that over emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive Article 14 of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality. This admonition seems to have come true in the present case, as the classification of “adult male person” clearly subverts the doctrine of equality, by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence. 34. We have also been referred to D.S. Nakara v. Union of India, (1983) 1 SCC 305 . This judgment concerned itself with pension payable to Government servants. An office Memorandum of the Government of India dated 25-5-1979 restricted such pension payable only to persons who had retied prior to a specific date. In holding the date discriminatory and arbitrary and striking it down, this Court went into the doctrine of classification, and cited from Special Courts Bill, 1978. In Re: (1979) 2 SCR 476 and Maneka Gandhi v. Union of India, (1978) 2 SCR 621 , and went on to hold that the burden to affirmatively satisfy the court that the twin tests of intelligible differentia having a rational relation to the object sought to be achieved by the Act would lie on the State, once it has been established that a particular piece of legislation is on its face unequal. The Court further went on to hold that the petitioners challenged only that part of the scheme by which benefits were admissible to those who retired from service after a certain date. The challenge, it was made clear by the Court, was not to the validity of the Scheme, which was wholly acceptable to the petitioners, but only to that part of it which restricted the number of persons from availing of its benefit.” [Emphasis is mine.] 140. Therefore, the court should eschew the proclivity of over-emphasizing the test of classification if Article 14 is to be applied with full vigour; which postulates affording equal protection of the laws to persons who are placed in similar and like circumstances. While doing so, the court should examine closely how the impugned statute/provision operates on the ground i.e., what is its real effect and impact on the persons who come within the sway of the statute/impugned provision. In doing so, the court should disregard remote and indirect consequences that may entail by virtue of the impugned statute/provision. While doing so, the court should examine closely how the impugned statute/provision operates on the ground i.e., what is its real effect and impact on the persons who come within the sway of the statute/impugned provision. In doing so, the court should disregard remote and indirect consequences that may entail by virtue of the impugned statute/provision. [See Anuj Garg.] Thus, the Doctrine of Classification which has been forged by constitutional courts to give practical content to the doctrine must ultimately subordinate itself to the prime principle, which is, that the fundamental right of the aggrieved person to seek equality before a law is preserved. [See Lachhman Dass.] 141. The immediate deleterious impact of the provisions of MRE is that while an unmarried woman who is the victim of the offence of rape stands protected and/or can take succour by taking recourse to various provisions of the IPC and/ the Code, the same regime does not kick-in if the complainant is a married woman. In this context, one may have regard to the following provisions of the IPC and the Code : Section 228A of the IPC prevents disclosure of the identity of a rape victim except in certain circumstances set out therein. Likewise, Section 26 of the Code provides that the offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided by a woman. Section 53A empowers a medical practitioner to examine, a person charged with committing an offence of rape if he has reasonable grounds for believing that such examination will furnish evidence with regard to the commission of the offence. The first proviso to Section 154 mandates if information is given by a woman victim, inter alia, with regard to the offence of rape or its attempt, having been committed on her, such information shall be recorded by a woman police officer/any woman officer. Similarly, the second proviso to Section 161of the Code also requires the statement of the woman victim to be recorded by a woman police officer or by any woman officer. Similarly, the second proviso to Section 161of the Code also requires the statement of the woman victim to be recorded by a woman police officer or by any woman officer. Under Section 164A, medical examination, albeit, with the consent of the woman-victim is to be conducted by a registered medical practitioner within 24 hours of information being received with regard to commission of offence of rape, while under the first proviso appended to Section 309, the inquiry or trial relating to the offence of rape is ordinarily to be completed within two months of the date of filing of the chargesheet. Section 327 provides that inquiry and trial of the offence of rape/aggravated rape shall be conducted in camera and as far as practicable by a woman judge or magistrate with leeway to the presiding judge to grant access to a particular person if thought fit by him/her or upon an application being made by any one party. Lastly, Section 357C mandates provision of first aid or medical treatment, albeit, free of cost to women who are inter alia victims of rape. 141.1. The aforementioned provisions are those provisions to which a married woman victim would have no recourse. The fact that the law does not operate even-handedly for women who are similarly circumstanced i.e. subjected to forced sex is writ large and no amount of legal callisthenics will sustain MRE. Therefore, in my view, MRE is bad in law as it violates Article 14 of the Constitution. V(ii) Relationship-centric provisions in the IPC 142. This brings me to the argument that there are other provisions in the IPC which are relationship-centric and, therefore, MRE cannot be struck down on the ground that it grants impunity to the offender only because he is in a marital relationship with a woman-victim. The argument is only partially correct and, therefore, misses the point that Mr Rao and Ms Rebecca John had proffered in the course of the hearing. 142.1. First and foremost, what is required to be examined in this case, as noticed above, is the legal tenability of the impugned provision in the context of the object sought to be achieved. As discussed above, the stated object of Section 375 amongst others is to punish offenders who are found guilty of rape. 142.1. First and foremost, what is required to be examined in this case, as noticed above, is the legal tenability of the impugned provision in the context of the object sought to be achieved. As discussed above, the stated object of Section 375 amongst others is to punish offenders who are found guilty of rape. The invidious classification that is brought about by MRE fails to achieve this object and, therefore, is unable to offer equal protection of the law to married women-victims who are similarly circumstanced. Thus, when contrasted with other provisions in the IPC, which provide for exceptions on account of the marital relationship- would show that they firewall offences which are committed outside marriage and not offences perpetrated by one spouse upon the other. In this context, one may advert to Sections 136, 212, 216 and 216A of the IPC which broadly concerns prosecution for offences for harbouring deserters, offenders, escapees and robbers/dacoits respectively. 142.2. In all these cases, where the person who is harboured and the one who harbours are in a spousal relationship, the law excludes such an offender from the rigours of prosecution. The point which was made and which emerges upon a plain reading of these provisions is that these are not provisions where the deserter, escapee, offender or robber/dacoit commits an offence on the harbourer with whom she or he is in a spousal relationship. 142.3. MRE, on the other hand, seeks to grant impunity to the husband i.e., the offender, although, the offence is perpetrated on the wife. Therefore, the argument that there are other provisions in the IPC that ring-fence defendants from prosecution based on a marital relationship are in the context of the aforesaid discussion completely misconceived. V(iii) A married woman can take recourse to other remedies 143. The submission made that there are avenues available both in IPC and other statutes which can be taken recourse by a woman-victim to agitate her grievance concerning sexual violence once again fails to recognize the fact that none of them brings within its fold the offence of rape. Section 498A of the IPC which was cited in this context deals with an offence of “cruelty” committed by the husband or his relatives. The definition of "cruelty" plainly does not include the offence of rape as defined in Clauses (a) to (d) of Section 375. Section 498A of the IPC which was cited in this context deals with an offence of “cruelty” committed by the husband or his relatives. The definition of "cruelty" plainly does not include the offence of rape as defined in Clauses (a) to (d) of Section 375. The expression "cruelty" as defined in Section 498A of IPC means wilful conduct which is of such nature that is likely to drive the woman to commit suicide or to cause grave injury to her life, limb or health. The expression also includes harassment of a woman where such harassment is directed towards coercing her or any person related to her to meet any unlawful demand concerning, property and/or valuable security. The failure of the victim or any person related to her to meet such demand is also construed as harassment under the said provision. Thus, the offence of rape cannot be brought within the ambit of Section 498A of the IPC. 144. Likewise, other provisions of the IPC such as Section 304B (concerning dowry death) and Section 306 (concerning abetment of suicide) do not bring within its ambit the offence of rape. The presumptions provided under Section 113A (with regard to abetment of suicide of a married woman) and 113B (vis-à-vis dowry death) under the Evidence Act are corelatable to Section 498A and Section 304B of the IPC respectively. These provisions by themselves do not militate against the argument that they do not further the cause of a woman-victim who wishes to agitate her grievance concerning forced marital sex. 145. Likewise, the Statement of Objects and Reasons of the D.V. Act would distinctly bring forth the point that it was enacted to protect women against domestic violence. The Statement of Objects and Reasons acknowledges that the remedies available under the "civil law" up until then did not address the phenomena of domestic violence in its entirety. The thrust of the D.V. Act is to protect women from becoming victims of domestic violence and to prevent the occurrence of domestic violence in the society. The fact that Section 498A of the IPC was available to a woman in cases in which she was subjected to cruelty by her husband or relatives was also noticed. The thrust of the D.V. Act is to protect women from becoming victims of domestic violence and to prevent the occurrence of domestic violence in the society. The fact that Section 498A of the IPC was available to a woman in cases in which she was subjected to cruelty by her husband or relatives was also noticed. The emphasis of Messrs Sai Deepak and Kapoor was on the definition of domestic violence as provided in Clause (a) of Section 3 read with Explanation 1(ii) of the D.V. Act. The submission was, that under Section 18 of the said Act, a magistrate can pass protection orders and likewise, issue a slew of directions under Section 19. In particular, it was pointed out that under sub-section (2) of Section 19, the magistrates routinely, issue directions for the registration of an FIR to protect or provide safety to the aggrieved person. It was pointed out that besides this, the magistrate also has power under Section 20 to grant monetary reliefs which, inter alia, require the respondent to make good the loss of earnings and/or to provide for medical expenses to the aggrieved person resulting from acts which emanate from domestic violence. 145.1. Clearly, these arguments, hedge around the main issue, which is, to call out the offence of rape for what it is. These arguments miss the point that although sexual abuse is included in the definition of domestic violence, the offender is not tried for the offence of rape and the consequences that the offender would have to face, as provided in Section 376(1) of the IPC if found guilty. The fact that the magistrate under Section 19(2) of the D.V. Act can order registration of an FIR for every other offence other than marital rape only highlights the fact that the woman-victim is nowhere near the point from which she can trigger prosecution of her husband who has subjected her to forced sexual intercourse. 145.2. Similarly, the Statement of Objects and Reasons of the Dowry Act would disclose that the said Act was enacted to prohibit the “evil practice” of giving and taking dowry. It, in no manner protects married women against sexual abuse. 145.3. Insofar as redressal against injury caused on account of sexual abuse amounting to rape is concerned, the husband is not visited with any criminal liability for raping his wife. It, in no manner protects married women against sexual abuse. 145.3. Insofar as redressal against injury caused on account of sexual abuse amounting to rape is concerned, the husband is not visited with any criminal liability for raping his wife. [See HMA, SMA; The Parsi Marriage and Divorce Act, 1936; and the Divorce Act, 1969.] V(iv) Conjugal expectation 146. The submission that the husband has “conjugal expectation” to have sexual communion with his wife, in my opinion, is tenable as long as the expectation is not equated to an unfettered right to have sex without consent of the wife. The law cannot direct consummation. The best illustration is the decree of restitution for conjugal rights issued by the court under Section 9 of the HMA. Although a decree obtained under HMA can become the basis for seeking a divorce, the decree can be executed only by a attachment of property. [See Order XXI Rule 32 of CPC; and also see Saroj Rani.] 147. Conjugal expectations, though, legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis-a-vis his wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition. V(v) Non-consensual sexual intercourse is not labelled as “rape” to save the institution of marriage. 148. The submission that the legislature has not condoned spousal sexual violence but has only taken a conscious decision not to label it as “rape” to protect the institution of marriage and by extension families and progeny, to my mind, ignores the fundamental fact that marriage is a union between two individuals [recognised by the law and the society] who may have familial attachments. The marital bond between individuals is the edifice of the familial structure. The expanse of the familial structure is, in turn, dependent on whether or not individuals are part of a joint family or have chosen for themselves a nuclear family. Thus, it is important that the edifice on which the familial structure is erected remains intact i.e. the union between the individuals. However, the edifice can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other’s yearning for physical and mental autonomy. These, perhaps, are the core principles which require constant nurturing through love and affection. However, the edifice can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other’s yearning for physical and mental autonomy. These, perhaps, are the core principles which require constant nurturing through love and affection. Undeniably when these core principles are violated that the edifice crashes resulting in the collapse of the familial structure. 148.1. The State has no role in setting up the edifice or the familial structure. The State via various statutory instruments recognizes the existence of the marital bond and provides avenues for its dissolution and/or remedies where it becomes unworkable. The HMA, SMA, D.V. Act and other legislations are illustrations of the role assigned to the State concerning the recognition of marriages, their dissolution and provision of remedies for aggrieved parties which includes maintenance/custody of progeny born from wedlock. The State’s interest is limited to the extent provided by various, such-like statutes of such genre. 148.2. It is in this backdrop that the State has legislatively intervened from time to time both in the sphere of criminal and civil law to provide remedies to women who are subjected to sexual abuse. Section 375, 376, 376B and other appurtenant provisions contained in the IPC for aggravated rape and the D.V. Act are prime examples of the legislative intervention made by the State in the interest of women exposed to sexual abuse and domestic violence. 148.3. That said, the State appears to have stopped short of conferring the right on a woman to call out an offender who happens to be her husband when he subjects her to rape. The argument that the State has recognized other forms of sexual offences and, therefore, to protect the familial structure, it does not wish to go further (i.e., empower a married woman to trigger the criminal law when her husband subjects her to rape) amounts to giving recognition to the abominable Common Law Doctrine that a married woman is nothing but chattel who loses her sexual agency once she enters matrimony. 149. Certain sexual offences need to be called out for what they are. Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender. Sexual assault by the husband on his wife which falls within the fold of Section 375 of the IPC, in my opinion, needs to be called out as rape as that is one of the ways in which the society expresses its disapproval concerning the conduct of the offender. Oddly, the prevailing mores in society appear to stigmatize the victim rather than the rapist. Therefore, I agree with Ms Nundy that the sexual assault which falls within the four corners of Section 375 of the IPC needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage. The fact that certain ingredients of the offence covered under Section 375 are found present in other provisions of the IPC concerning hurt (Section 319 read with Section 321& 323), grievous hurt (Section 320 read with Section 322& 325) or cruelty (Section 498A) does not provide a satisfactory answer as to why a sexual assault which is synonymous with rape should not be labelled as rape when the offence is committed on an adult married woman by her husband. V(vi) Lodgement of false cases 150. The other argument that striking down MRE would result in the lodgement of false cases is based on a notion which is not backed by any empirical data. First and foremost, what is required to be kept in mind is that a vast number of women married or unmarried do not report sexual assaults because of the stigma attached to it. The most authentic data which was presented before us [and not refuted by the Union of India (UOI)/Government of National Capital Territory of Delhi (GNCTD)] was the National Family Health Survey (NFHS-4) carried out under the aegis of Government of India, Ministry of Health and Family Welfare for 2015- 2016. The data placed before us disclosed that the survey appears to have been conducted among married women (falling between the age of 15 to 49 years). The survey revealed disturbing aspects concerning spousal sexual violence, both, from "current husbands" as well as "former husbands"; apart from the fact that 99% of the sexual assault cases remain unreported. The relevant part of the survey is extracted hereafter; the figures and narratives set forth speak for themselves. The survey revealed disturbing aspects concerning spousal sexual violence, both, from "current husbands" as well as "former husbands"; apart from the fact that 99% of the sexual assault cases remain unreported. The relevant part of the survey is extracted hereafter; the figures and narratives set forth speak for themselves. “Table 16.6 Persons committing sexual violence Among women age[d] 15-49 who have experienced sexual violence, [the] percentage who report specific persons committing sexual violence according to current marital status and age at [the] first experience of sexual violence, India 2015-16 Marital Status Age at [the] first experience of sexual violence Person Ever married Never married <15 years 15 years or higher Don’t know Total Current husband 82.6 na 83.1 86.0 47.8 77.0 Former husband 9.2 na 9.8 10.0 4.0 8.6 151. Therefore, the apprehension expressed that there will be a deluge of false cases against offending husbands does not appear to be correct. If the NHFS data is taken into consideration, it establishes that 9.9 out of 10 cases of sexual assault in India go unreported. Thus, the contention that because there is a possibility of false cases being lodged and, therefore, the courts should refrain from striking down MRE even if it is unconstitutional, is in my view, a contention which is completely unmerited. 151.1. Besides the reason articulated hereinabove, this submission, if I may say so, is suggestive of the fact that the married women in India are manipulative or capable of being manipulated more than their counterparts in other jurisdictions. In support of this submission, observations made in judicial decisions concerning offences such as Section 498A of the IPC have been cited before us. In my view, the apprehension is, firstly, exaggerated and, as indicated above, is not backed by empirical data; the data in fact shows that the contrary is true. Secondly, the courts in India are fully equipped to deal with false cases. Lodgement of false cases is not confined to rape, it permeates, to an extent, to other provisions of IPC as well. Section 498A of the IPC is a case in point. Despite, noticing oddities in certain cases and/or false complaints being lodged the legislature has not been spurred into removing, the provision from the statute; I presume for three reasons: First, statistically, the number of false cases is minuscule. Section 498A of the IPC is a case in point. Despite, noticing oddities in certain cases and/or false complaints being lodged the legislature has not been spurred into removing, the provision from the statute; I presume for three reasons: First, statistically, the number of false cases is minuscule. Second, it is a beneficial provision which protects a married woman from atrocities that may be inflicted on her by the husband and/or his family. Third, the Courts have been able to deal with such cases appropriately. 151.2. Thus, this being the track record of Courts up until now, no one need entertain doubts that the Courts would not be able to employ the same rigour qua false allegations of marital rape. The best way forward would be to create a sieve at every level so that false cases are weeded out. 151.3. However, if one were to accept the submission that there would be a deluge of false cases against husbands and use this as the basis for rejecting the challenge laid to MRE, it would be a case of throwing the baby out with the bathwater. V(vii) Invasion of Private Space 152. As regards the submission that prosecution of the offending husband for a rape offence would result in invading the private space of a married couple- is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as “sacrosanct” space. The argument to say the least is morally suspect and legally untenable. The reason for this is not far to see. When an offence of sexual abuse (short of rape) takes place within the confines of a married couple’s private space, the law has unhindered access to the very same space to bring the guilty to justice. Thus, short of rape, if an offending husband inflicts hurt or grievous hurt or subjects her to cruelty or even sexual abuse, the investigators are undoubtedly empowered to enter the concerned couple’s private space, which in joyful times is the preserve of a married couple. The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her. The attempt to keep away the law even when a woman is subjected to forced sex by her husband, by demarcating private and public space is to deny her the agency and autonomy that the Constitution confers on her. The distinction between private and public space has no relevance when rights of the women victim are infringed. In this context, the following observations in Joseph Shine being apposite are extracted hereafter : “192. The right to privacy depends on exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, the courts must step in to ensure that dignity is realized in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situation when the rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution. …. XXX XXX XXX “218….Constitutional protections and freedoms permeate every aspect of a citizen’s life - the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights are concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny…” [Emphasis is mine.] V(viia) Gathering evidentiary material would be difficult 153. Likewise, the argument that collection/gathering of evidence would be difficult in cases involving marital rape is, in my view, no different from the impediments faced by an investigator concerning other offences, short of rape, which occur in marital space. 154. Mr Sai Deepak’s contention that investigation in private and intimate space because of fear of accusation of rape would require couples to enter into a detailed written agreement concerning courtship and/or mating or propel the persons involved to create evidentiary record concerning every act of intimacy or have third party witness the act, in my view, trivializes the sexual abuse inflicted on a woman. This argument, as observed hereinabove, stems from a pre-conceived notion that married women lack a sense of proportion or are inherently manipulative. The argument lacks substance because if this submission were to be accepted then the rape law ought not to apply also to couples who are in live-in relationships. The logical sequitur of this line of argument is that rape law should be confined to an offence committed on a woman by a stranger alone. The argument lacks substance because if this submission were to be accepted then the rape law ought not to apply also to couples who are in live-in relationships. The logical sequitur of this line of argument is that rape law should be confined to an offence committed on a woman by a stranger alone. In my opinion, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law. 154.1. These are the very same arguments which have been propounded by the persons such as intervenors in support of offending husbands who subject their wives to rape, and remain outside the purview of the rape law. Pertinently, similar objections received the attention of the UK Law Commission (1991) which was considered by it in its Working Paper No. 116. To establish the untenability of the objection and for the sake of brevity, let me straight away extract some parts of the said report, as they are not only wholesome but are also based on robust common sense. "4.51...... We are likewise unaware of any evidence to suggest that there would be significantly more problems of proof in relation to rape than in relation to other crimes within marriage, though we shall welcome further comment on that issue. However, because of the importance of this general issue we set out in this section for comment some further factors that seem to us to assist in assessing the matter. 4.52..... As to the first, difficulty of proof, issues of evidence and proof in marital rape cases do not in fact appear to be different in kind from those arising in many crimes, sexual and non-sexual, where the case turns on the word of the accused against that of the alleged victim. The courts are well aware of these difficulties, particularly as they affect crimes like rape, and of their obligation to ensure that injustice does not occur..... We suggest, therefore, that the courts would be able to protect the interests of the accused here as in other cases involving sexual allegations. 4.53 The converse fear is that courts would be so concerned to protect the interests of the accused that the extension of the law of rape to cohabiting married couples would have no practical effect. We suggest, therefore, that the courts would be able to protect the interests of the accused here as in other cases involving sexual allegations. 4.53 The converse fear is that courts would be so concerned to protect the interests of the accused that the extension of the law of rape to cohabiting married couples would have no practical effect. This would not be a problem in cases where the husband used violence; or boasted of his exploits; or otherwise created secondary evidence. But even in cases where the only evidence was that of the wife, courts would be capable of identifying testimony that was in fact credible and acting on it. We point out below that despite the considerable trauma that can attend participation in a rape trial, at least some complainants, even in cases of rape committed by intimates in private, appear to be willing to come forward, and convictions are obtained. While we recognise that a complaint by a wife might be scrutinised with particular care both by the prosecuting authorities and by the courts, we have seen no evidence to suggest that a law of marital rape would be unenforceable. As the High Court of Justiciary of Scotland put it in Stallard v H M Advocate, 1999 SCCR 248, 255C-D "We accept, of course, that proof of rape in marriage will, in many situations, be difficult, but that is no reason for saying that a charge of rape (of his wife) against a husband while the parties are still cohabiting, is not relevant for trial.” [Emphasis is mine.] 155. Therefore, it cannot be said that the difficulties in proving rape as against other offences within marriage are somehow greater. Moreover, one cannot close one’s eyes to the offence of rape merely because it is difficult to prove. There cannot be a greater travesty of justice. In my view, the rules of evidence as applicable in our country and scores of precedents of our Courts and of Courts in other jurisdictions can easily provide guidance on these aspects. V(viii) New offence 156. One of the principal objections to striking down MRE is that it would create a “new offence”. In support of the submission that striking down MRE would not create new offence, Ms Nundy, Mr. Rao and Ms John, inter alia, relied upon the judgment in Independent Thought. V(viii) New offence 156. One of the principal objections to striking down MRE is that it would create a “new offence”. In support of the submission that striking down MRE would not create new offence, Ms Nundy, Mr. Rao and Ms John, inter alia, relied upon the judgment in Independent Thought. It was also their submission that what the criminal law punishes is the act of commission or omission; in this case, subjecting a woman to a forced sexual act, which is, agnostic to who the perpetrator of the crime is. In this context, reference was made to the provisions of the IPC and the Code which define the expression “offence”. 157. The contention is that if MRE is struck down all that it would do is to bring the offending husband within the fold of the substantive rape law. On the other hand, Messrs Sai Deepak and Kapoor read passages from the decision rendered in Independent Thought to demonstrate that the court was only attempting to correct the anomaly which subsisted vis-à-vis a child-bride who was subjected to forced sex by her husband. In this behalf, both, Mr Sai Deepak as well as Mr Kapoor highlighted the fact that the judges who rendered the decision have made it amply clear that they were not dealing with marital rape in the context of an adult woman. This argument was buttressed by relying upon the provisions of IPC i.e., the sixth circumstance contained in Section 375 and the provisions of the POCSO Act and PCM Act. 157.1. To meet this objection, Ms Nundy had relied upon the “inversion test”, as formulated by Professor Eugene Wambaugh, which is cited with approval by the Supreme Court in Utility Users’ Welfare and Nevada Properties (P) Ltd. 158. In my view, the submission that if one were to strike down MRE, it would create a new offence, is misconceived for the following reasons : (i) Firstly, the offence of rape is already defined in the substantive part of Section 375 of IPC. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if MRE is excised, all that would happen is, it would extend the ambit of Section 375 to even offending husbands. (ii) Secondly, a new offence/new crime would perhaps have been created if the ingredients of the offence had changed. [See People v. Liberta.] It is no one’s case that the ingredients of the offence have changed; all that would happen if MRE is struck down is that the offending husband would fall within the ambit of the offence. (iii) Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. [See C.B. Gautam v. Union of India (1993) 1 SCC 7845; Navtej Singh Johar; and Harsora v. Harsora.] (iv) Fourthly, MRE (Exception 2 to Section 375 of the IPC) seeks to ringfence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live-in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law (Section 45 In short "C.B. Gautam" 375) even separated husbands by inserting Section 376B in Chapter XVI of the IPC; a provision which is challenged by the petitioners on different grounds. (v) Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the IPC. Section 40 of the IPC which defines an “offence”, inter alia, provides : “Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word “offence” denotes a thing made punishable by this Code. In Chapter IV,..…the word “offence” denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word “offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine.” [Emphasis is mine.] (va) Likewise, the expression “offence” is also defined in Section 2(n) of the Code which reads as follows : “2(n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle trespass Act, 1871 (1 of 1871).” [Emphasis is mine.] (vb) Besides this, the Code also defines the expression “victim” in Section 2(w)(a) which reads as follows : “2(wa). “Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir.”[Emphasis is mine.] (vc) The aforesaid definitions of the expression “offence” and “victim” would show that an act or an omission to commit an act is treated as an offence only if it is made punishable by any law whether it be the IPC or any special or local law. In other words, acts which produce or are likely to produce harmful effects as contemplated under the penal law are punishable. In the same way, omissions which produce or are likely to produce a similar harmful effect that the law seeks to plug are punished likewise. That being said, there are certain omissions that the law does not punish as is evident from the scheme of IPC. (vd) Therefore, the penal law is act/omission centric and, in most situations, is neutral to who the perpetrator of the crime is. The fact that in certain cases (which includes provisions that find a place in IPC or special statutes such as Juvenile Justice Act, 2015) relationship enters the fray does not dilute the fundamental premise on which penal laws are pivoted, which is, that they punish the act committed (or its omission); which is made punishable, irrespective of the relationship between the offender and the victim. As noticed above; for example, qua the offence of harbouring a deserter, an offender, an escapee or a robber or a dacoit, the IPC, excludes the spouse from the rigour of prosecution. [See Sections 136, 212, 216 & 216A.] These provisions and the like would not sustain the argument that MRE should remain on the statute as, firstly, the dissonance that MRE creates by excluding a particular set of offenders from the ambit of the main provision is not found in such examples. Secondly, these are provisions which do not concern the perpetration of sexual violence by one spouse on the other, i.e. the husband on his wife. 159. Secondly, these are provisions which do not concern the perpetration of sexual violence by one spouse on the other, i.e. the husband on his wife. 159. The submission made by Mr Sai Deepak that the judgments cited on behalf of the petitioners i.e., Shreya Singhal and Navtej Singh Johar would have no applicability as they relate to a constitutional challenge to a criminalizing provision i.e., Section 66A of the IT Act and Section 377 of the IPC respectively is unsound as it fails to recognize the fact that MRE is constitutionally suspect because it suffers from “under inclusivity” and fails to furnish a “determining principle” as to why offending husbands should be left out from the rigour of rape law. 159.1. The judgment of the House of Lords in R. v. R. made a particularly significant observation in this context (i.e., creation of new offence) while dealing with the expression “unlawful sexual intercourse” found in the UK Sexual Offences (Amendment) Act, 1976. The court was called upon to ascertain whether the word “unlawful” which preceded the expression “sexual intercourse” was a mere surplusage and not implying, outside marriage. The House of Lords ruled that the word "unlawful" was redundant since it was, even otherwise, unlawful to have sexual intercourse with any woman (married or unmarried) without her consent : “The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent, and that the use of the word in the subsection adds nothing. In my opinion there are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment, as it clearly fell to be in those referred to by Donovan J. That was the view taken of it by this House in McMonagle v. Westminster City Council (1990) 1 All ER 993, (1990) 2 AC 716 in relation to paragraph 3A of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1983. I am therefore of the opinion that Section 1(1) of the Act of 1976 presents no obstacle to this House declaring that in modern times the supposed marital exemption in rape forms no part of the law of England. The Court of Appeal (Criminal Division) took a similar view. I am therefore of the opinion that Section 1(1) of the Act of 1976 presents no obstacle to this House declaring that in modern times the supposed marital exemption in rape forms no part of the law of England. The Court of Appeal (Criminal Division) took a similar view. Towards the end of the judgment of that court Lord Lane CJ said [(1991) 2 All ER 257 at 266, (1991) 2 WLR 1065 at 1074] : ‘The remaining and no less difficult question is whether, despite that view, this is an area where the court should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.’” [Emphasis is mine.] 159.2. The argument that the House of Lords in R. v. R. was dealing with a provision which was not akin to the MRE, although, literally correct, disregards the reasoning furnished by the Law Lords in concluding that the expression unlawful was a surplusage. The defendant's plea that a husband cannot be held guilty of raping his wife was based on the Common Law Doctrine of implied consent given by the wife once she entered matrimony. This defence was rejected by the trial court as well as the Court of Appeal (Criminal Division) and, ultimately, found resonance with the House of Lords. The ratio of the judgment in R. v. R. is squarely applicable, to my mind, to the issue at hand, both for the proposition that striking down MRE does not create a new offence and that if such a step is taken, the court need not leave the matter to the legislature. 160. Thus, for the reasons given above, I am not persuaded to hold that striking down MRE would result in the creation of a new offence. 161. Although, as noticed above, the petitioners relied upon the decision rendered in Independent Thought which, in turn, noticed the decision in R. v. R., I have consciously not gone down that path because of the observations made by the learned judges that their rulings would not apply to MRE concerning an adult-woman. 161. Although, as noticed above, the petitioners relied upon the decision rendered in Independent Thought which, in turn, noticed the decision in R. v. R., I have consciously not gone down that path because of the observations made by the learned judges that their rulings would not apply to MRE concerning an adult-woman. That said, it is important to observe that, even though the binding effect of the judgment rendered in Independent Thought may have been diluted, the observations made therein would surely have persuasive value. [See Periyar & Pareekanni Rubbers Ltd. v. State of Kerala, (2016) 1 SCC 294 , paragraph 3446.] 161.1. As adverted to hereinabove, the court in Independent Thought was also dealing with Exception 2 appended to Section 375 of the IPC, albeit, that part which concerned a child bride. The court after examining the provisions of the IPC and appurtenant statutes, read down Exception 2 and, in effect, declared that it would not apply if the sexual intercourse or sexual act was committed by a man with his wife, who was under 18 years of age. Thus, the age threshold concerning the girl-child was brought in line with the sixth circumstance outlined in the main part of Section 375. The age threshold provided in Exception 2 for the wife stands enhanced from “under fifteen years of age” to “under eighteen years of age”; to that extent, the impunity granted to the offending husband stands diluted. Therefore, as per the present state of law, if a husband has forced sex with his wife, who is under 18 years of age, he is liable to be prosecuted for rape as the principle of implied consent would not apply in his case. 161.2. That said, the logic, rationale and reasoning provided by the Supreme Court in Independent Thought while reaching this conclusion surely, has immense weight which cannot be brushed aside. [See paragraphs 190-193 at pages 884-885 of Independent Thought-If the Court were to read down Exception 2 to Section 375, it would not create a new offence.] VI MRE violates Article 21 of the Constitution 162. Apart from the fact that MRE, in my view, falls foul of the equality clause of the Constitution, it also violates Article 21 of the Constitution. The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is. Apart from the fact that MRE, in my view, falls foul of the equality clause of the Constitution, it also violates Article 21 of the Constitution. The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is. The fact that the rapist is the husband of 46 In short “Periyar & Pareekanni Rubbers Ltd.” the victim does not make the act of sexual assault any less injurious, degrading or dehumanizing. Irrespective of who the perpetrator is, forced sex mars the woman-victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding, the fact that the rapist is in a marital relationship with the victim. 163. Modern-day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship. Non-consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty which encompasses her right to protect her physical and mental being. Non-consensual sex destroys this core by violating what is dear to her, which is, her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred. 164. What makes the continuance of MRE on the statute egregiously problematic is, while it emasculates the woman’s right to trigger prosecution against her husband for non-consensual sex, women, who are sex workers or are separated from their husbands, are invested with this right. Besides this, MRE makes no allowance for the circumstances in which a wife may say “no” to sex. For example, a wife may refuse to engage in sexual activity with her husband when she is ill or is menstruating or is unable to engage in sexual activity because of a sick child. Besides this, MRE makes no allowance for the circumstances in which a wife may say “no” to sex. For example, a wife may refuse to engage in sexual activity with her husband when she is ill or is menstruating or is unable to engage in sexual activity because of a sick child. The wife may also want to keep away from sexual activity in a situation where the husband has contracted an infectious, sexually transmissible disease, such as HIV; her refusal in such a situation may emanate not only on account of concern for herself but also, to protect the progeny which may result from such communion. These are aspects which only exacerbate the lack of autonomy and sexual agency which stands embedded in MRE. 165. Even in the 19th century when the Common Law Doctrine was in play (i.e., that a husband could not be held criminally liable for raping his wife), difficulty was experienced in applying the doctrine, which was noticed in R. v. Clarence, (1886-1890) All ER Rep 133 : (1888) 22 Q.B.D 23. 165.1. This was a case where the husband was accused of having sexual intercourse with his wife at a time when, to his knowledge, he was suffering from gonorrhoea. It was found that the wife was ignorant of this fact. The argument was, had she known, she would have not consented to the sexual communion. In this backdrop, the court was called upon to consider whether the husband's conviction could be sustained under Section 20 and/or 47 of the Offences Against the Person Act, 1861. Section 20 was concerned with unlawfully and maliciously inflicting grievous bodily harm while Section 47, concerned the offence of assault, occasioning actual bodily harm. In this background, one of the arguments the court was required to consider was whether the wife's implied consent to intercourse stood revoked. 165.2. This case was heard by 13 judges out of which four rendered a dissenting opinion and, hence, sustained the conviction. The dissenting opinion of Hawkins, J. brings to fore the discomfort that the judges holding minority view experienced with the plurality opinion, which ruled against convicting the offending husband. 165.2. This case was heard by 13 judges out of which four rendered a dissenting opinion and, hence, sustained the conviction. The dissenting opinion of Hawkins, J. brings to fore the discomfort that the judges holding minority view experienced with the plurality opinion, which ruled against convicting the offending husband. Hawkins, J. opined rather felicitously that if the law was, as understood by the majority, he did not wish to be party to such a judgment which would proclaim to the world that the law in England is that even though the husband deliberately and knowingly perpetrated such abominable outrage on his wife and yet he could not be punished for such “atrocious barbarity”. The following observations being significant, in my view, need to be appreciated in the context of the present day MRE found in the IPC: “…. I proceed now to consider the question whether there was, in fact, an assault by the prisoner on his wife occasioning her either grievous or actual bodily harm. I answer this question, also, in the affirmative. By the marriage contract a wife no doubt confers upon her husband an irrevocable privilege to have sexual intercourse with her during such time as the ordinary relations created by such contract subsist between them. For this reason it is that a husband cannot be convicted of a rape committed by him upon the person of his wife. But this marital privilege does not justify a husband in endangering his wife's health and causing her grievous bodily harm, by exercising his marital privilege when he is suffering from venereal disorder of such a character that the natural consequence of such communion will be to communicate the disease to her. Lord Stowell in Popkin v. Popkin (16) said (1 Hag. Ecc. Lord Stowell in Popkin v. Popkin (16) said (1 Hag. Ecc. At p. 767, n.): “The husband has a right to the person of his wife, but not if her health is endangered.” So to endanger her health and cause her to suffer from loathsome disease contracted through his own infidelity, cannot, by the most liberal construction of his matrimonial privilege, be said to fall within it; and although I can cite no direct authority upon the subject, I cannot conceive it possible seriously to doubt that a wife would be justified in resisting by all means in her power, nay, even to the death, if necessary, the sexual embraces of a husband suffering from such contagious disorder. In my judgment wilfully to place his diseased person in contact with hers without her express consent amounts to an assault. It has been argued that to hold this would be to hold that a man who suffering from gonorrhoea has communion with his wife might be guilty of the crime of rape. I do not think this would be so. Rape consists in a man having sexual intercourse with a woman without her consent, and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful ; but there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion endangering health and causing harm, which is unlawful. It may be said that assuming a man to be diseased, still as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, and, therefore, cannot be criminal. My reply to this argument is that if a person having a privilege of which he may avail himself or not at his will and pleasure, cannot exercise it without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of his unlawful conduct. …. …. ….Another argument used for the prisoner was that such cases as the present were not contemplated by the statute under which he was indicted; and it was also said that if it had been intended that the communication of a venereal disease to a woman during an act of sexual intercourse consented to by her should be punishable as a crime, some special enactment to that effect would have been introduced into one or other of the Acts of Parliament relating to women and offences against them. This is an argument to which I attach no weight, assuming the facts bring the case within the fair interpretation of the sections to which I have referred. .... .....I think the legislature contemplated the punishment of all grievous bodily harm, however caused, if caused unlawfully and maliciously; and I cannot bring my mind for an instant to believe that, even had the circumstances before us been present to the minds of the framers of the Act, they would have excluded from its operation an offence as cruel and as contrary to the obligation a man owes to his wife to protect her from harm, as can well be conceived. .... .... Fortified in my opinion, as I believe myself to be, by the plain words of the statute and by the authority of Willes, J., one of the greatest and most accurate lawyers of modern times, I have arrived at the conclusion that this conviction is right and in accordance with the law, and I cannot, therefore, be a party to a judgment which in effect would proclaim to the world that by the law of England in this year 1888 a man may deliberately, knowingly, and maliciously perpetrate upon the body of his wife the abominable outrage charged against the prisoner, and yet not be punishable criminally for such atrocious barbarity. ....”;[Emphasis is mine.] 165.3. Coincidentally, around the same time i.e., in and about July 1890, a similar view was expressed in India by the Calcutta High Court in Queen- Empress v. Hurree Mohun Mythee (1891) ILR 18 Cal 49. In a nutshell, the view was that the husband's absolute right to marital privilege had to be hemmed in bearing in mind the wife's health and safety: “5. In a nutshell, the view was that the husband's absolute right to marital privilege had to be hemmed in bearing in mind the wife's health and safety: “5. Now, gentlemen, I must begin by asking you carefully to distinguish a certain branch of the law which has no connection with this case from other branches of the law which may have a connection with it. The branch of the law which has no connection with this case is the law of rape. It is probably within the knowledge of you all, gentlemen, that the crime of rape consists in having sexual intercourse with a female either without her consent, or when she is of such an age that she cannot in law consent, and that the crime consists in the fact of intercourse independently of circumstances, of intention, of knowledge, and of consequences. And, in the case of married females, as you probably know, the law of rape does not apply as between husband and wife after the age of ten years. But it by no means follows that because the law of rape does not apply as between husband and wife, if the wife has attained the age of ten years, that the law regards a wife over ten years of age as a thing made over to be the absolute property of her husband, or as a person outside the protection of the criminal law. That of course cannot be supposed. Under no system of law with which Courts have had to do in this country, whether Hindu or Mahomedan, or that framed under British rule, has it ever been the law that a husband has the absolute right to enjoy the person of his wife without regard to the question of safety to her as for instance, if the circumstances be such that it is certain death to her, or that it is probably dangerous to her life. The law, it is true, is exceedingly jealous of any interference in matters marital, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity. But, as I have said, the criminal law is applicable between husband and wife wherever the facts are such as to bring the case within the terms of the Penal Code. But, as I have said, the criminal law is applicable between husband and wife wherever the facts are such as to bring the case within the terms of the Penal Code. I am not aware that there has occurred any case in this country in recent years in which such a matter has come under the consideration of a Criminal Court; but in earlier times there are recorded instances in the reports of the Sudder Nizamat, in which husbands have been criminally punished for having sexual intercourse with their wives with fatal results, in consequence of their wives being unfit by reason of immaturity for such intercourse, even in cases which did not fall within the law of rape. But at present we are guided simply by the Penal Code, and we have to see what provisions of the Penal Code are or may be applicable to the facts of this case.”[Emphasis is mine.] 165.4. Pertinently, this troubling aspect of uninhibited marital privilege, without regard to the health and safety of the victim, was noticed by the House of Lords in R. v. R. [See (1991) 4 All ER 481, 485.] VII MRE violates Articles 15 and 19(1)(a) of the Constitution 166. Although, Article 15 of the Constitution prohibits the State from discriminating against any citizen inter alia on the ground of sex, the instant matters allude to discrimination made within the same sex, solely on the ground of their marital status. Continuance of MRE on the statute violates, in my opinion, Article 15 of the Constitution since it triggers discrimination against women based on their marital status. Resultantly, it impairs and nullifies their sexual agency with regard to coitus and their right to procreate or abstain from procreation. More fundamentally, their power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses, is completely eroded. 166.1. Likewise, MRE, in my view, is also violative of Article 19(1)(a) of the Constitution, as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country. The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. 166.1. Likewise, MRE, in my view, is also violative of Article 19(1)(a) of the Constitution, as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country. The guarantee of freedom of expression includes a woman’s right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non-citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non-consensual sexual intercourse by her husband. VIII Separated husbands 167. Having examined the flaws in MRE, what needs to be dealt with is whether Section 376B read with Section 198B of the Code should also fall by the wayside. Since I have concluded that granting impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist. In other words, separated husbands would suffer the same punishment, as prescribed for any other rapist under Section 376(1) of the IPC, as that would be the logical sequitur of striking down MRE. As noticed above, under this provision, the minimum mandatory sentence is 10 years whereas under Section 376B, for a separated husband, the minimum mandatory sentence is 2 years which may extend to 7 years. In both cases, in addition to imprisonment, the concerned court is also empowered to impose a fine. Furthermore, under Section 198B of the Code, no court can take cognizance of an offence punishable under Section 376B of the IPC (i.e., against a separated husband) except upon prima facie satisfaction of the facts which constitute the offence upon a complaint having been lodged by the wife against her husband. Thus, Section 376B of IPC and Section 198B of the Code which advert to the third category (i.e., separated husbands) provide not only a different procedure for triggering the offence but also mandates a lower minimum sentence without being able to demonstrate how a rapist who falls in this category is different from a husband who is not separated or even a person who is a stranger to the victim. The provision, to my mind, is incongruous as, at the risk of repetition, I need to emphasise that a rapist remains a rapist irrespective of his relationship with the victim. The strenuous argument advanced on behalf of the intervenors that quality of relationship matters, provides no amelioration for the woman who is violently violated. 168. In the course of the hearing, one of the issues which arose for consideration concerned the punishment provided for aggravated rape, in the context of offending husbands. In particular, reference in this behalf was made to the expression “relative” mentioned in Section 376(2)(f) of the IPC. It was contended that if MRE was struck down, then, the husbands could also be held guilty of aggravated rape as they would fall within the meaning of the word “relative”. To appreciate this argument, the relevant provision needs to be looked at closely : “376. Punishment of rape.- (2)(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman.” 168.1. A close perusal of the provision would show that while the preceding clauses (a) to (e) of sub-section (2)(f), deal with a situation where the victim is confined to a physical space which is under the physical or constructive control of the offender, succeeding clauses [i.e., clauses (g) to (n)] of the very same sub-section relate to women placed in vulnerable circumstances. Clause (f) of sub-section (2) of Section 376 seeks to bring those offenders within the rape law, who are in a position of trust or have authority over the woman-victim. The persons specifically identified in this behalf, in clause (f) of sub-section (2) of Section 376 [without confining it to them], are a relative, guardian or teacher. Although the ordinary meaning of the word "relative" would be a member of the family, whether related by blood or not or even a distant or close relative, the expression “relative” has not been defined either in IPC or in the Code, which does create an element of ambiguity. 168.2. Therefore, looking at the provision, holistically, in the context and setting in which the expression “relative” is mentioned, the legislature intended to include, in my opinion, only those relatives, who are in a position of trust or authority such as a guardian or a teacher. 168.2. Therefore, looking at the provision, holistically, in the context and setting in which the expression “relative” is mentioned, the legislature intended to include, in my opinion, only those relatives, who are in a position of trust or authority such as a guardian or a teacher. It appears that the legislature intended to bring within the fold of clause (f) of sub-section (2) of Section 376 offenders, who, to begin with, had a platonic relationship with the victim. In other words, the offender’s close bond with the victim, to begin with, was not suffused with sexual or romantic overtones. 168.3. Thus, when the expression “relative” is read contextually, the offending husband, in my view, would not fall within the ambit of the said expression and, therefore, the apprehension that the burden of proof would shift because of the presumption of lack of consent (as provided in Section 114A of the Evidence Act) would not arise in such cases. The principle of noscitur a sociis would apply to clause (f) to sub-section (2) of Section 376 of IPC insofar as the expression “relative” is concerned. 168.4. The other argument advanced insofar as clause (h) and (n) of subsection (2) of Section 376 are concerned, that they would lead to harsher punishment as compared to husbands who are separated and covered under Section 376B and, therefore, MRE should not be struck down, in my opinion, is misconceived. Section 376(2)(h) and Section 376(2)(n) concern gross cases and, therefore, fall in the category of aggravated rape. Section 376(2)(h) concerns rape of a woman, who is known to be pregnant while Section 376(2)(n) pertains to subjecting the same woman to repeated rape. In view of the conclusion arrived at by me that Section 376B deserves to be struck down, this submission can have no merit. These are acts which deserve the same punishment, as prescribed by the legislature, irrespective of who the offender is. IX Presumption of Constitutionality of Pre-Constitutional Statutes 169. I must indicate that a substantial part of the arguments, on both sides, was directed to the issue concerning the presumption of constitutionality in respect of a pre-constitutional statute such as IPC. Ms Nundy had relied upon the observations made in Navtej Singh Johar (see paragraphs 359 to 362) and Joseph Shine (see paragraph 270) to buttress her argument that no such presumption applied to pre-constitutional statutes. 170. Ms Nundy had relied upon the observations made in Navtej Singh Johar (see paragraphs 359 to 362) and Joseph Shine (see paragraph 270) to buttress her argument that no such presumption applied to pre-constitutional statutes. 170. Mr Sai Deepak, on the other hand, has contended that the judgment in Navtej Singh Johar is per incuriam. The reasons why he says so have been recorded hereinabove by me in sub-para (xix) of paragraph 9.1. 171. Suffice it to say that it is not open for this court to declare a judgment of the Supreme Court which is binding under Article 141 of the Constitution [not only on this court but all courts within the territory of India] as per incuriam. [See South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai and Others (2015) 2 SCC 727 [14. We are of the view that it was not open to the High Court to hold that the judgment delivered by this Court in South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop. Societies [South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop.Societies, (1998) 2 SCC 580 : 1998 SCC (L&S) 703] was per incuriam. 15. If the view taken by the High Court is accepted, in our opinion, there would be total chaos in this country because in that case there would be no finality to any order passed by this Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside. The High Court had considered several provisions which, in its opinion, had not been considered or argued before this Court when CA No. 4343 of 1988 was decided [South Central Railway Employees Coop. Credit Society Employees' Union v. Registrar of Coop. Societies, (1998) 2 SCC 580 : 1998 SCC (L&S) 703] . If the litigants or lawyers are permitted to argue that something what was correct, but was not argued earlier before the higher court and on that ground if the courts below are permitted to take a different view in a matter, possibly the entire law in relation to the precedents and ratio decidendi will have to be rewritten and, in our opinion, that cannot be done. Moreover, by not following the law laid down by this Court, the High Court or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India.] 171.1. Furthermore, the following judgment of the Supreme Court has gone on to hold that even obiter dicta is binding : Municipal Committee, Amritsar vs. Hazara Singh, (1975) 1 SCC 794 [4. ……..“Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurcharan Singh v. State of Punjab [1972 FAC 549] and Prakash Chandra Pathak v. State of Uttar Pradesh [ AIR 1960 SC 195 : 1960 Cri LJ 283] that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other cases.]. Although, on this aspect, there is a contrarian view expressed by the Supreme Court in the matter of Periyar & Pareekanni Rubbers Ltd., [[34. In Director of Settlements v. M.R. Apparao [(2002) 4 SCC 638], this Court extensively elaborated upon the principle of binding precedent. The relevant para 7 is reproduced hereunder : (SCC pp. 650-51) “7. … Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is, therefore, an essential function of the Court to interpret a legislation. The statements of the Court on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the court that forms the ratio and not any particular word or sentence. To determine whether a decision has ‘declared law’ it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An ‘obiter dictum’ as distinguished from a ratio decidendi is an observation by the Court on a legal question suggested in a case before it but not arising in such manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, but it cannot be denied that it is of considerable weight.”] 172. Having said so, I have, in reaching my conclusion, presumed (for the sake of argument) that the impugned provisions are constitutional. However, after closely examining the arguments put forth by both sides, I have reached (as discussed above) a definitive conclusion that the impugned provisions are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution. Besides this, it must be borne in mind that although a pre-constitutional law like IPC is saved by the provisions of Article 372 of the Constitution, they are, inter alia, open to challenge under the relevant provisions of the Constitution, such as in this case, under Articles 14, 15, 19(1)(a) and 21. 172.1. Thus, while examining the validity of such a legislation, one is required to keep in mind the changes that have been brought about in the society and the alteration that has been brought about over time, both, in the world view as well as in the view held by the domestic constituents. 172.2. 172.1. Thus, while examining the validity of such a legislation, one is required to keep in mind the changes that have been brought about in the society and the alteration that has been brought about over time, both, in the world view as well as in the view held by the domestic constituents. 172.2. The case in point is the judgment rendered by the Supreme Court in Anuj Garg. In this case, the Court was called to rule on the vires of Section 30 of the Punjab Excise Act, 1914, which prohibited employment of any man under the age of 25 years and any woman in any part of such premises in which liquor or intoxicating drugs were consumed by the public. 172.3. The Court, while ruling upon the issue, inter alia made the following apposite observations : "8. ...... “28. … The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretative changes of the statute affected by passage of time.” Referring to the changing legal scenario and having regard to the Declaration on the Right to Development adopted by the World Conference on Human Rights as also Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, it was held : (John Vallamattom case [ (2003) 6 SCC 611 ], SCC p. 625, para 33) “33. It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26-1-1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changed situation. 9. Changed social psyche and expectations are important factors to be considered in the upkeep of law. Decision on relevance will be more often a function of time we are operating in. Primacy to such transformation in constitutional rights analysis would not be out of place....” [Emphasis is mine.] X Reliance on Decisions of Foreign Courts & International Covenants & Conventions 173. Decision on relevance will be more often a function of time we are operating in. Primacy to such transformation in constitutional rights analysis would not be out of place....” [Emphasis is mine.] X Reliance on Decisions of Foreign Courts & International Covenants & Conventions 173. This brings me to the objections raised by MWT and Mr Kapoor with regard to the reliance placed by the petitioners on decisions of foreign courts and international covenants such as CEDAW. 174. While an attempt has been made to distinguish the foreign judgments cited by Mr Gonsalves, Ms Nundy and the two amicus curiae i.e., Mr Rao and Ms John on the ground that the jurisdictions in which the judgments were rendered did not have a provision akin to Exception 2 to Section 375, the fact remains that each of these judgments except FWLD(Nepal), concerned sexual assault by a husband or ex-husband on his wife, albeit, in different settings : 175. As indicated above, except for the judgment rendered by the Supreme Court of Nepal in FWLD(Nepal), which was a public interest petition, all other cases concerned women who had been raped by their husbands. Therefore, let me just briefly advert to them, to the extent they are relevant to the issue at hand. 176. The judgment rendered by the ECHR in CR v. UK was in a way examining, albeit, at the behest of the convicted husband, another facet of the judgment rendered by the House of Lords in R v. R. The convicted husband having lost right up to the House of Lords filed an application under Article 7 of the European Convention on Human Rights [in short “Convention”], which, inter alia, stated that no one could be held guilty of a criminal offence on account of any act or omission, which did not constitute a criminal offence, under the national law or international law at the time when it was committed. 176.1. Therefore, the husband’s argument before ECHR was, as the provisions of the Section 1(1)(a) of the Sexual Offences (Amendment) Act, 1976 had been interpreted to his prejudice for the first time by the Courts of England, he could not be convicted for the offence of rape. The argument being, having regard to the provisions of Article 7 of the Convention, the ECHR should not consider his conduct in relation to any of the exceptions of the immunity rule. The argument being, having regard to the provisions of Article 7 of the Convention, the ECHR should not consider his conduct in relation to any of the exceptions of the immunity rule. The ECHR applied the foreseeability test in rejecting the husband’s application. According to ECHR, the husband should have reasonably foreseen that over a period of time the law had dismantled the immunity which was available at one point of time, against the charge of martial rape : “41. The decisions of the Court of Appeal and then the House of Lords did no more than continue a perceptible line of case-law development dismantling the immunity of a husband from prosecution for rape upon his wife (for a description of this development, see paragraphs 14 and 20-25 above). There was no doubt under the law as it stood on 12 November 1989 that a husband who forcibly had sexual intercourse with his wife could, in various circumstances, be found guilty of rape. Moreover, there was an evident evolution, which was consistent with the very essence of the offence, of the criminal law through judicial interpretation towards treating such conduct generally as within the scope of the offence of rape. This evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law (see paragraph 34 above). 42. The essentially debasing character of rape is so manifest that the result of the decisions of the Court of Appeal and the House of Lords - that the applicant could be convicted of attempted rape, irrespective of his relationship with the victim - cannot be said to be at variance with the object and purpose of Article 7 (art. 7) of the Convention, namely to ensure that no one should be subjected to arbitrary prosecution, conviction or punishment (see paragraph 32 above). What is more, the abandonment of the unacceptable idea of a husband being immune against prosecution for rape of his wife was in conformity not only with a civilised concept of marriage but also, and above all, with the fundamental objectives of the Convention, the very essence of which is respect for human dignity and human freedom.” 177. In People v. Liberta, the defendant- husband had raped his wife, while the temporary protection order passed by the Court was in operation. In People v. Liberta, the defendant- husband had raped his wife, while the temporary protection order passed by the Court was in operation. Under the provisions of the Statute in force, at the relevant time, in the State of New York, a husband could be held guilty only if the spouses were living apart. In other words, in such a situation, they were deemed under the statute as not being married. 177.1. The defendant’s husband, however, took the position that the temporary protection order in law and on facts, did not constitute living apart and hence he could not be convicted of rape. Therefore the argument was that since he remained married to his wife at the time rape was alleged to have occurred, he came within the ambit of MRE, both vis-à-vis the charge of rape and sodomy. 177.2. Besides this, the argument was that the subject penal law was genderbased and under inclusive, and, therefore, was “constitutionally defective”. 177.3. On facts, the Court returned a finding that because of the prohibition in the temporary protection order the couple were in law living apart and, therefore, were not married. 177.4. The Court also came to the conclusion that the subject penal law was constitutionally invalid on account of under inclusion and because it was not gender-neutral. Interestingly, the Court grappled with the issue as to whether it should declare the entire statute a nullity or instead, just sever the exemption. In reaching this conclusion, the Court made the following observations : “…. While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals….Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon "some ground of difference that rationally explains the different treatment"… xxx xxx xxx We find that there is no rational basis for distinguishing between marital rape and non marital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional. xxx xxx xxx Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally under-inclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of under-inclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded…Accordingly, the unconstitutionality of one part of a criminal statute does not necessarily render the entire statute void.. This court's task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to under-inclusiveness... As Judge Cardozo wrote over 50 years ago, "'The question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether'" ["'[unless] it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law'"]). These principles of severance apply as well where elimination of an invalid exemption will impose burdens on those not formerly burdened by the statute…, and where the exemption is part of a criminal statute.. The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute.. . Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today.. . Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today.. Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate the exemptions and thereby preserve the statutes. Accordingly we choose the remedy of striking the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35 of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree. Because the statutes under which the defendant was convicted are not being struck down, his conviction is affirmed. Though our decision does not "create a crime", it does, of course, enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and thus creating a hiatus would have... Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute. The decision most similar factually to the present one comes from the Alaska Supreme Court in Plas v State (598 P2d 966). That court addressed an equal protection challenge by a female prostitute to a statute which criminalized prostitution, and defined it as a female offering her body for sexual intercourse for hire. The court agreed with the defendant that the statute violated equal protection because it covered only females, but chose to remedy this under-inclusion by striking the definition, thereby expanding the statute to cover any person who engaged in prostitution, and affirmed her conviction.”[Emphasis is mine.] 178. As alluded to above, in FWLD, the Supreme Court of Nepal was called upon to examine the constitutional validity of Chapter No. 1 on rape found in the Country Code. As alluded to above, in FWLD, the Supreme Court of Nepal was called upon to examine the constitutional validity of Chapter No. 1 on rape found in the Country Code. This chapter by not including in the definition of rape-non-consensual sexual intercourse between spouses, extended immunity to the offending husband. The State represented by the Attorney General had, broadly, advanced the following arguments; quite similar to what was put to us by the intervenors : (i) Married and unmarried woman cannot be treated alike. Therefore, the equality clause is not violated. (ii) The impugned provision has been framed keeping in mind that once parties enter into marriage, the consent for sexual intercourse is permanent. (iii) There are other remedies available to the wife who is injured, such as divorce and having the husband booked for “battery”. (iv) It is for the legislature to conclude as to what sorts of acts committed by a person or group of persons in a society need to be criminalised and the punishment that should be imposed. (v) It is not in conformity with Hindu religion to have a husband take consent to have sexual intercourse with his own wife. 179. The Supreme Court of Nepal after relying upon various international conventions including CEDAW and judgment of the New York Court of Appeals in People v Liberta, concluded that there is a gap in criminal law insofar as it did not include marital rape as a criminal offence. The Court went on to rule that since norms and values in criminal law had to keep pace with time, that gap was required to be filled. Consequently, while the writ petition was quashed (a procedure peculiar to Nepal) holding that that the impugned definition of rape was not inconsistent with the Constitution, a direction was issued to the Parliament to introduce a Bill to fill the gaps concerning marital rape. 179.1. It appears that the gap pointed out in FWLD (Nepal) was filled; however, the punishment provided to offending husbands was considerably less. Insofar as the offending husband was concerned, under Section 3(6) of the Chapter on Rape, the punishment ranged between three to six months, whereas in other cases, the period of incarceration was much longer, which was corelated to the age of the victim. This provision was challenged in Jit Kumari (Nepal). 179.2. Insofar as the offending husband was concerned, under Section 3(6) of the Chapter on Rape, the punishment ranged between three to six months, whereas in other cases, the period of incarceration was much longer, which was corelated to the age of the victim. This provision was challenged in Jit Kumari (Nepal). 179.2. In this case, the Court found that the petitioner had been sexually abused by her husband. 179.3. The petitioner, on the other hand, had argued that because the punishment imposed on the offending husband in a case involving marital rape was minimal, he would be released on bail pending adjudication of his appeal, leading to further victimisation. This plea found favour with the Court and, accordingly, a direction was issued to the State to amend the law to reconsider the quantum of punishment, concerning marital rape. 180. The judgment of the Supreme Court of Philippines in People v. Edgar also concerned the issue of marital rape. The complainant/wife had been subjected to rape by her husband in the presence of her children. Several defences were taken including that the wife had falsely accused the husband of rape; the wife had extra marital affairs and that the wife wanted to usurp husband’s business. The Supreme Court after taking note, inter alia, of the Hale doctrine, the provisions of CEDAW and the judgment of the New York Court of Appeals in People v. Liberta made the following pertinent observations: “Rape is a crime that evokes global condemnation because it is an abhorrence to woman's value and dignity as a human being. It respects no time, place, age, physical condition or social status. It can happen anywhere and it can happen to anyone. Even, as shown in the present case, to a wife, inside her time-honored fortress, the family home, committed against her by her husband who vowed to be her refuge from cruelty. The herein pronouncement is an affirmation to wives that our rape laws provide the atonement they seek from their sexually coercive husbands. Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife's body by reason of marriage. By marrying, she does not divest herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital coitus. A husband does not own his wife's body by reason of marriage. By marrying, she does not divest herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's unremitting refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her yield. He can seek succor before the Family Courts that can determine whether her refusal constitutes psychological incapacity justifying an annulment of the marriage. Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion that achieves the marital purpose of procreation. It entails mutual love and self-giving and as such it contemplates only mutual sexual cooperation and never sexual coercion or imposition. The Court is aware that despite the noble intentions of the herein pronouncement, menacing personalities may use this as a tool to harass innocent husbands. In this regard, let it be stressed that safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false marital rape complaints and any person who institutes untrue and malicious charges will be made answerable under the pertinent provisions of the RPC and/or other laws.”[Emphasis is mine.] 181. Insofar as the application of international conventions/covenants is concerned, the established law is that the courts in India can take recourse to international covenants as long as they are not inconsistent with the domestic municipal law. As a matter of fact, the domestic courts "are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them.” [See Anuj Garg.] 181.1. A case in point is Githa Hariharan v. RBI (1999) 2 SCC 228 . In this case, the Supreme court while construing the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardian and Wards Act, 1890 which were challenged on the ground that it violated the equality clause in the constitution took recourse to CEDAW and the Beijing Declaration to reach a conclusion that a woman could not be relegated to an inferior position vis-a-vis her guardianship rights qua a minor, when pitted against the father’s right qua the child. [Also see Vishaka; Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 ; and Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759 .] 181.2. It is relevant to note that both in Vishaka and Apparel Export Promotion Council case, the Supreme Court adverted to CEDAW. Both these cases again concerned women, who were subjected to sexual harassment, albeit, at work places. Insofar as Jolly George Varghese case is concerned, Justice V. R. Krishna Iyer [as he then was], while interpreting Section 51 of the CPC, drew inspiration from International Covenant on Civil and Political Rights (ICPCR). 181.3. I do not wish to multiply cases in which Supreme Court and Courts all over the country from time to time have relied upon international conventions, covenants and declarations as aid to their reasoning in reaching a conclusion, in matters, which concern violation of civil rights and/or human rights. It is also important to remind ourselves, something I have mentioned above, that the framers of our Constitution drew inspiration from Constitutional documents concerning other countries such as USA, Canada and Australia. Therefore, the argument that one should not look at decisions of other jurisdictions or refer to international conventions/covenants/declarations, disregards the fact that we live in an inter-connected global environment where there is constant exchange of ideas and frameworks adopted by one or the other country. If I may add, by way of figure of speech, where information is concerned, the “Earth is flat”. 182. Thus, in the context of the foregoing discussion, it would be instructive to peruse and bear in mind the following brief extracts from certain Conventions/Declarations, which are relevant to the issue at hand and none of them, in my opinion, are inconsistent with the domestic law : 182.1. CEDAW "Article I For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: xxx xxx xxx (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (g) To repeal all national penal provisions which constitute discrimination against women. Article 15 1. States Parties shall accord to women equality with men before the law. Article 16 1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: xxx xxx xxx (c) The same rights and responsibilities during marriage and at its dissolution;" [Also see: General Recommendation No. 19: Violence Against Women updated by General Recommendation No. 35 on gender -based violence against women[General Recommendation No. 35 In its general recommendation No. 19 on violence against women, adopted by the Committee on the Elimination of Discrimination Against Women, at its eleventh session in 1992, the Committee clarified that discrimination against women as defined in Article 1of the Convention, included gender-based violence, that is, “violence which is directed against a woman because she is a woman or that affects women disproportionately”, and that it constituted a violation of their human rights.] 182.2. The Declaration on the Elimination of Violence against Women [DEVAW],[Ratified by the United Nations General Assembly on 20.12.1993], inter alia, includes marital rape in Article 2(a)[Article 2 Violence against women shall be understood to encompass, but not be limited to, the following: a. Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;], which highlights the heightened awareness in most jurisdictions across the world that violence against women is an obstacle to attainment of equality, development and peace and an obstacle to enjoyment of rights and feelings, which otherwise are natural rights conferred on any human being. 182.3. 182.3. Beijing Declaration[Adopted by the United Nations in the Fourth World Conference on Women, held on 15.10.1995.] “D. Violence against women 112. Violence against women is an obstacle to the achievement of the objectives of equality, development and peace. Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms. The long-standing failure to protect and promote those rights and freedoms in the case of violence against women is a matter of concern to all States and should be addressed. Knowledge about its causes and consequences, as well as its incidence and measures to combat it, have been greatly expanded since the Nairobi Conference. In all societies, to a greater or lesser degree, women and girls are subjected to physical, sexual and psychological abuse that cuts across lines of income, class and culture. The low social and economic status of women can be both a cause and a consequence of violence against women. 113. The term “violence against women” means any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. Accordingly, violence against women encompasses but is not limited to the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.”[Emphasis is mine.] 182.4. The aforesaid extracts from CEDAW, DEVAW and the Beijing Declaration are self-explanatory and hence do not need much dilation. To put it succinctly, it is now well-recognised in most jurisdictions that violence against women means an act of gender based violence, which includes inter alia marital rape. It is well documented that marital rape is recognised as an offence in more than 50 countries. We can ignore this rich resource material only at our own peril. XI Parliamentary Committee Reports 183. It is well documented that marital rape is recognised as an offence in more than 50 countries. We can ignore this rich resource material only at our own peril. XI Parliamentary Committee Reports 183. As noticed in the earlier part of this judgment, both, Mr Sai Deepak and Mr Kapoor have called for judicial self-restraint because, despite several debates on the merits and demerits of MRE in various forums, the legislature chose not to change the status quo. While noticing this objection, I have taken note of the documents which were cited in this behalf. [See sub-para (xx) of paragraph 9.1 and sub-para (ii) of paragraph 11 above.] 184. Messrs Sai Deepak and Kapoor are right that despite the views being expressed for and against retaining MRE on the statute in forums such as the Parliamentary Standing Committee, the Lok Sabha Committee on Empowerment of Women, the 172nd Law Commission and the Justice Verma Committee, the status quo continues to obtain. 184.1. This, in my view, is no reason not to intercede in the matter if, otherwise, I am convinced that MRE (as I am) is violative of the married women's fundamental rights under Articles 14, 15, 19(1)(a) and 21 of the Constitution. The fact that the legislature has not intervened, as observed by the Supreme Court in the Navtej Singh Johar case in the context of the challenge to Section 377 of the IPC is a “neutral fact” and, hence, cannot impede the examination by the court as to the Constitutional validity of MRE. 184.2. The observations made in this context by the Supreme Court in Navtej Singh Johar being apposite are extracted hereafter: “364. The fact that the legislature has chosen not to amend the law, despite the 172ndLaw Commission Report specifically recommending deletion of Section 377, may indicate that Parliament has not thought it proper to delete the aforesaid provision, is one more reason for not invalidating Section 377, according to Suresh Kumar Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. This is a little difficult to appreciate when the Union of India admittedly did not challenge the Delhi High Court judgment [Naz Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762 : (2009) 111 DRJ 1 ] striking down the provision in part. This is a little difficult to appreciate when the Union of India admittedly did not challenge the Delhi High Court judgment [Naz Foundation v. Govt. (NCT of Delhi), 2009 SCC OnLine Del 1762 : (2009) 111 DRJ 1 ] striking down the provision in part. Secondly, the fact that Parliament may or may not have chosen to follow a Law Commission Report does not guide the Court’s understanding of its character, scope, ambit and import as has been stated in Suresh Kumar Koushal[Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1]. It is a neutral fact which need not be taken into account at all. All that the Court has to see is whether constitutional provisions have been transgressed and if so, as a natural corollary, the death knell of the challenged provision must follow.” [Emphasis is mine.] 184.3. This apart, I am persuaded to attach weight to the observations and the final recommendations made by Justice Verma Committee in its Report on marital rape which were made after a deep dive into the prevailing ecosystem concerning a rape law, both, within and outside the country. I intend to extract the same hereafter : “72. The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands. According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked. … 73. This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Court, declared, ‘marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.’ 74. Our view is supported by the judgment of the European Commission of Human Rights in C.R. v UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Our view is supported by the judgment of the European Commission of Human Rights in C.R. v UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that this change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom. This was given statutory recognition in the Criminal Justice and Public Order Act 1994. 75. We find that the same is true in Canada, South Africa and Australia. In Canada, the provisions in the Criminal Code, which denied criminal liability for marital rape, were repealed in 1983. It is now a crime in Canada for a husband to rape his wife. South Africa criminalised marital rape in 1993, reversing the common law principle that a husband could not be found guilty of raping his wife. Section 5 of the Prevention of Family Violence Act 1993 provides: ‘Notwithstanding anything to the contrary contained in any law or in the common law, a husband may be convicted of the rape of his wife.’ In Australia, the common law ‘marital rape immunity’ was legislatively abolished in all jurisdictions from 1976.88 In 1991, the Australian High Court had no doubt that: ‘if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law.’ According to Justice Brennan (as he then was): ‘The common law fiction has always been offensive to human dignity and incompatible with the legal status of a spouse.’ 76. These jurisdictions have also gone further and recognised that consent should not be implied by the relationship between the accused and the complainant in any event. In the Canadian 2011 Supreme Court decision in R v. J.A., Chief Justice McLachlin emphasised that the relationship between the accused and the complainant ‘does not change the nature of the inquiry into whether the complaint consented’ to the sexual activity. The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant. In the Canadian 2011 Supreme Court decision in R v. J.A., Chief Justice McLachlin emphasised that the relationship between the accused and the complainant ‘does not change the nature of the inquiry into whether the complaint consented’ to the sexual activity. The defendant cannot argue that the complainant’s consent was implied by the relationship between the accused and the complainant. In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act (‘Sexual Offences Act’) provides, at s. 56 (1), that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation. 77. Even when marital rape is recognised as a crime, there is a risk that judges might regard marital rape as less serious than other forms of rape, requiring more lenient sentences, as happened in South Africa. In response, the South African Criminal Law (Sentencing) Act of 2007 now provides that the relationship between the victim and the accused may not be regarded as a ‘substantial and compelling circumstance’ justifying a deviation from legislatively required minimum sentences for rape. 78. It is also important that the legal prohibition on marital rape is accompanied by changes in the attitudes of prosecutors, police officers and those in society more generally. For example, in South Africa, despite these legal developments, rates of marital rape remain shockingly high. A 2010 study suggests that 18.8% of women are raped by their partners on one or more occasion. Rates of reporting and conviction also remain low, aggravated by the prevalent beliefs that marital rape is acceptable or is less serious than other types of rape. Changes in the law therefore need to be accompanied by widespread measures raising awareness of women’s rights to autonomy and physical integrity, regardless of marriage or other intimate relationship. This was underlined in Vertido v The Philippines, a recent Communication under the Optional Protocol of the Convention on the Elimination of Discrimination Against Women (CEDAW), where the CEDAW Committee emphasised the importance of appropriate training for judges, lawyers, law enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender-sensitive manner. 79. We, therefore, recommend that: i. The exception for marital rape be removed. ii. 79. We, therefore, recommend that: i. The exception for marital rape be removed. ii. The law ought to specify that: a. A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation; b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity; c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape. 80. We must, at this stage, rely upon Prof. Sandra Fredman of the University of Oxford, who has submitted to the Committee that that “training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”.” 184.4. As is well known, the Justice Verma Committee was constituted in the backdrop of the brutal gang-rape of a young lady which occurred in Delhi on December 16, 2012[Nirbhaya Gang rape case]. A spate of recommendations were made, some of which were accepted and, thus, formed a part of the Criminal Law (Amendment) Act, 2013. Amongst several amendments that were brought about by the Criminal (Amendment) Act, 2013 included the expansion of the definition of “rape”, enhancing the minimum mandatory sentence under Section 376(1) and insertion of Section 376B which substituted Section 376A of the IPC. As noticed above, the legislature, for whatever reason, stopped short of accepting the recommendations of the Justice Verma Committee concerning the removal of MRE. 185. Given the foregoing discussion, I am clearly of the view that the recommendations were in line with the constitutional mores and/or morality which in the recent past have been captured and reiterated by the Supreme Court in the judgments rendered in Joseph Shine and Navtej Singh Johar. 186. Thus, for the sake of argument, even if I concur with Messrs Sai Deepak and Kapoor that the State should define, monitor and sanction what would be appropriate conduct in the context of sexual activity between married couples, what needs to be emphasized is that the State, as a representative of the society, shares the responsibility to deprecate and punish sexual abuse/violence of every form. This responsibility, cast on the State, extends beyond interpersonal space ordinarily available to a married couple where there is no violence. Thus, when the State exempts criminal acts such as forced sex within marriage, it unwittingly engages in unequal disbursement of rights conferred by the Constitution. Consequentially, those, who commit the offence i.e., the husbands do not suffer the rigour of the law and those, who are victims, i.e., the wives get no protection from the law. [See Kersti Yllo and M. Gabriela Torres, Marital Rape -Consent, Marriage and Social Change in Global Context: Prologue - Understanding Marital Rape in Global Context, Kersti Yllo, page 13.] XII Material & Case law Cited on behalf of the Intervenors 187. Before I conclude, I must now embark upon the exercise of delving through the judgments and the materials cited on behalf of the intervenors in support of their submissions. I must state at the outset that none of the material/judgments cited have persuaded me to hold that the impunity available to the husbands because of MRE should not be disturbed. In other words, the status quo should continue till such time the Executive/the Legislature decides to intercede in the matter. 188. Let me first begin with the 167th Report of the Parliamentary Standing Committee of Home Affairs on the Criminal Law (Amendment) Bill, 2012. 188.1. This report was cited to demonstrate that despite deliberation, the matter was not taken forward and MRE continued to remain on the statute. Apart from the fact that deliberations of the Standing Committee on which the legislature chose not to move forward, as indicated above by me, is a “neutral fact", the extract placed before us clearly shows that several members had serious concerns about retaining MRE on the statute. The same is evident from reading the following extract from paragraphs 5.9.1 and 5.10.2 : “5.9.1 … Some Members also suggested that somewhere there should be some room for wife to take up the issue of marital rape. It was also felt that no woman takes marriage so simple that she will just go and complain blindly. Consent in marriage cannot be consent forever. … 5.10.2 … One condition that can be transmitted through sexual intercourse and that person knowingly commits such intercourse without use of protection and that act should also be brought under aggravated crime. ….”[Emphasis is mine.] 188.2. Consent in marriage cannot be consent forever. … 5.10.2 … One condition that can be transmitted through sexual intercourse and that person knowingly commits such intercourse without use of protection and that act should also be brought under aggravated crime. ….”[Emphasis is mine.] 188.2. The aforesaid extracts establish that there was a serious concern about the issue at hand. Although the majority on the Committee felt that the deletion of MRE would destroy the "institution of marriage", other members had different concerns. 188.3. To my mind, this by itself does not take the cause of the inter venors any further when looked at in the backdrop of physical and psychological impairment caused to a married woman who is subjected to rape by her husband. 189. The judgment in the matter of Laxmi Devi was cited in support of the proposition that the court must not easily invalidate a statute as it has the backing of the Legislature which comprises elected representatives. This case was concerned with a challenge laid to Section 47A of the Indian Stamp Act, 1899 (as amended by A.P. Act 8 of 1998). The impugned provision required a party to deposit 50% of the stamp duty as a condition precedent for making a reference to the Collector. The said provision was assailed on the ground that it was unconstitutional. It is in this context that the aforementioned observations were made by the court, but what is lost sight of, while relying on those observations, are the observations that are made in paragraphs 86 and 91 of the judgment : “88. In our opinion, therefore, while Judges should practise great restraint while dealing with economic statutes, they should be activist in defending the civil liberties and fundamental rights of the citizens. This is necessary because though ordinarily the legislature represents the will of the people and works for their welfare, there can be exceptional situations where the legislature, though elected by the people may violate the civil liberties and rights of the people. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modelled on the lines of the US Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. xxx xxx xxx 91. It was because of this foresight that the Founding Fathers of the Constitution in their wisdom provided fundamental rights in Part III of the Constitution which were modelled on the lines of the US Bill of Rights of 1791 and the Declaration of the Rights of Man during the Great French Revolution of 1789. xxx xxx xxx 91. It must be understood that while a statute is made by the peoples' elected representatives, the Constitution too is a document which has been created by the people (as is evident from the Preamble). The courts are guardians of the rights and liberties of the citizens, and they will be failing in their responsibility if they abdicate this solemn duty towards the citizens. For this, they may sometimes have to declare the act of the executive or the legislature as unconstitutional.” [Emphasis is mine.] 189.1. In my view, the judgment provides heft to the proposition formulated in paragraph 126 to 126.3 above. 190. Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 was yet another judgment cited in support of the proposition that the court should exercise judicial restraint. This case concerned casual workers who were employed on daily wages basis. The workmen had been given employment as dependants of employees who had died in harness. Upon an industrial dispute erupting between the parties, an award was passed by the Labour Court which held that workmen were entitled to regularization having regard to the long period, they had been in service. Besides this, the Labour Court also directed that workmen should be paid wages equivalent to those that were paid to regular employees. These directions which were the subject matter of the award were assailed by the petitioner company before the High Court. The High Court while agreeing with the petitioner company that the Labour Court could not have directed regularization, held that the workmen should continue in service till they reached the age of superannuation. Besides this the High Court directed that the workmen shall be paid wages at par with the regular employees. 190.1. It is in this background that the matter reached the Supreme Court. The Supreme Court after observing that the petitioner company had turned "sick" disagreed with the directions issued by the High Court as, according to it, regularization was not a mode of appointment. 190.2. 190.1. It is in this background that the matter reached the Supreme Court. The Supreme Court after observing that the petitioner company had turned "sick" disagreed with the directions issued by the High Court as, according to it, regularization was not a mode of appointment. 190.2. In the facts of the case, the court noted that the workmen were employed pursuant to an agitation by the union and on compassionate grounds; and not via a regular mode. It is in these circumstances that the court held that the directions issued for continuing the workmen in service would defeat the constitutional scheme concerning public employment. 190.3. In my view, the observations were clearly fact specific. The Court’s observation that the creation of posts, appointments and regularization fell within the domain of the executive and/or the legislature, was contextual, which cannot be applied where a statute or a provision is challenged on the ground that it violates the fundamental rights of the affected party. 191. Likewise, the judgment rendered in Suresh Seth v. Commissioner, Indore Municipal Corporation & Ors. (2005) 13 SCC 287 has no applicability whatsoever to the present case. This was a case where a challenge was laid to an order passed by the High Court while hearing a civil revision petition. The petitioner before the Supreme Court had challenged the appointment of a person who occupied the post of a Mayor on the ground that he could not have held the post of a Mayor as he was a sitting member of the Legislative Assembly. However, by the time the matter reached the Supreme Court, the concerned member’s tenure as a Mayor had expired, and therefore, the appeal, apparently, had been rendered infructuous. Thus, the court while dismissing the appeal made the observations to the effect that no mandamus could issue for amendment of the M.P. Municipal Corporation Act, 1956 disentitling a person from holding more than one post. 191.1. In my opinion, there is no such situation obtaining in the instant matters. 192. In the matter of Madhu Kishwar & Ors. v. State of Bihar & Ors. (1996) 5 SCC 125 , a challenge was laid to certain provisions of Chota Nagar Tenancy Act, 1908 [in short “CNT Act”]. The provisions disabled the tribal women from succeeding to the estate of her lineal ascendant. 192. In the matter of Madhu Kishwar & Ors. v. State of Bihar & Ors. (1996) 5 SCC 125 , a challenge was laid to certain provisions of Chota Nagar Tenancy Act, 1908 [in short “CNT Act”]. The provisions disabled the tribal women from succeeding to the estate of her lineal ascendant. The custom prevailing amongst persons belonging to Scheduled Tribes restricted the line of succession to male descendants. The provisions of the CNT Act were challenged by way of an Article 32 petition. The principal plea was to bring the provisions of the CNT Act in line with the general principles that, obtained in the Hindu Succession Act, 1956 [in short ‘HSA’], which put women at par with male descendants. The impediment to such an approach was Section 2(2) of the HSA. 192.1. A three-member bench rendered the decision in the matter. The majority on the bench while reading down Sections 7 and 8 of the CNT Act did not go that far as to strike down the said provisions. The majority protected the rights of female descendants under Sections 7 and 8 of the CNT Act by suspending the exclusive right of male succession till the female descendants chose other means of livelihood, manifested by abandonment and/or release of the holding. On the other hand, the minority view, in effect, veered around to the reasoning that the general principles which found a place in HSA could be applied to Scheduled Tribes. 192.2. It is in this context that the observations of the majority contained in paragraph 5["5. In the face of these divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or on equality principle, by judicial activism, is a difficult and mindboggling effort. Brother K. Ramaswamy, J. seems to have taken the view that Indian legislatures (and Governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. Brother K. Ramaswamy, J. seems to have taken the view that Indian legislatures (and Governments too) would not prompt themselves to activate in this direction because of political reasons and in this situation, an activist court, apolitical as it avowedly is, could get into action and legislate broadly on the lines as suggested by the petitioners in their written submissions. However laudable, desirable and attractive the result may seem, it has happily been viewed by our learned brother that an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For in whatever measure be the concern of the court, it compulsively needs to apply, somewhere and at sometime, brakes to its self-motion, described in judicial parlance as self-restraint. We agree therefore with brother K. Ramaswamy, J. as summed up by him in the paragraph ending on p. 36 (para 46) of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court.”] have to be viewed. It is also to be borne in mind that on a direction issued by the court during the pendency of the proceedings, an exercise was carried out by the Bihar Tribal Consultative Council which revealed that if the changes, as suggested, are effected in the HSA, the land over which tribals had ownership right, could get alienated. 192.3. Clearly, both the plurality and the minority views moved in the direction of granting relief to the tribal women. The methodology adopted and the degree of relief granted varied. The majority as well as minority members on the bench took recourse to judicial tools to alleviate the suffering of female tribals. 192.4. In contrast, in the instant matters, the most recent study, i.e., the Justice Verma Committee Report, did demonstrate that there was an imminent need for removing MRE from the statute. Despite a well-considered report, there has been no movement since 2013 on the issue of MRE. 192.4. In contrast, in the instant matters, the most recent study, i.e., the Justice Verma Committee Report, did demonstrate that there was an imminent need for removing MRE from the statute. Despite a well-considered report, there has been no movement since 2013 on the issue of MRE. Therefore, the ratio of the judgment in Madhu Kishwar is not what is sought to be portrayed on behalf of the intervenors i.e., where courts find that a statute or a provision in the statute is violative of the fundamental rights, the same cannot be struck down. 193. As to how and when such judicial tools are employed is demonstrated in the judgment by the Constitution Bench in the C.B. Gautam case. This was a case which concerned, inter alia, a challenge to Section 269UD of the Income Tax Act, 1961 [in short 'Act'] which stood incorporated in Chapter XX-C of that very Act. The provisions contained in Chapter XX-C, in particular, Section 269UD, empowered the Central Government to preemptively acquire an immovable property which was a subject matter of an agreement to sell if it was undervalued by more than 15%. Furthermore, the provision also vested in the Central Government a right in such property, albeit, “free from all encumbrances”. 193.1. Thus, two questions principally arose for consideration before the constitution bench. First, whether the aforementioned provision should have had embedded in it leeway for an intending purchaser and/or seller to demonstrate as to why an order for compulsory purchase ought not to be passed by the appropriate authority, in a given case. Second, whether the all encompassing expression "free from all encumbrances" should be struck down as it had no rational nexus with the object sought to be achieved by the legislation, which was, to prevent tax evasion. 193.2. The Court employed, both, tools, inasmuch as, it read into the provision, the principles of natural justice i.e., the requirement to issue a show cause notice to the intending purchaser and/or seller as to why the property ought not to be compulsorily purchased by the Government. Furthermore, it struck down the expression “free from all encumbrances” and, while doing so, the court made the following pertinent observations : “36. ….We agree that in order to save a statute or a part thereof from being struck down it can be suitably read down. Furthermore, it struck down the expression “free from all encumbrances” and, while doing so, the court made the following pertinent observations : “36. ….We agree that in order to save a statute or a part thereof from being struck down it can be suitably read down. But such reading down is not permissible where it is negatived by the express language of the statute. Reading down is not permissible in such a manner as would fly in the face of the express terms of the statutory provisions. ….”[Emphasis is mine.] 193.3. The Court, thus, excised from the statute the aforementioned expression “free from all encumbrances” as, according to it, it failed to meet the test of Article 14 and sustained the remaining parts of the provision. 194. The judgment rendered in Census Commissioner & Ors. v. R. Krishamurthy, (2015) 2 SCC 796 , in my view, is also not applicable to the issue at hand. In this case, the court was called upon to consider whether the direction issued by the High Court to the Census Commissioner that census should be carried out in a manner that caste-wise enumeration and/or tabulation get reflected in its report, was warranted, given the fact that no such direction had been issued by the Central Government under Section 8 of the Census Act, 1948 (as amended in 1993). 194.1. The Court held that the direction was flawed as the controversy that arose for adjudication before the High Court was entirely different. Before the High Court, a challenge was laid to the appointment of a person to a public office who was appointed solely on the basis that he belonged to a Scheduled Tribe. The High Court had noted that there were no persons belonging to a Scheduled Tribe residing in the place concerned (i.e., the Union Territory of Pondicherry) and that a presidential notification under Article 342 of the Constitution had not been issued. Based on this, the High Court concluded that no reservations for Scheduled Tribes could be made in the Union Territory of Pondicherry. Having said that, the High Court did not stop at this, it went on to issue directions to the Census Commissioner even though he was not a party to the proceedings. 194.2. Based on this, the High Court concluded that no reservations for Scheduled Tribes could be made in the Union Territory of Pondicherry. Having said that, the High Court did not stop at this, it went on to issue directions to the Census Commissioner even though he was not a party to the proceedings. 194.2. A close look at the judgment also shows that a second writ petition was filed which was allowed in terms of the order passed in the first writ petition. 194.3. That said, the following observations made by the court shed light on how one needs to proceed in matters where a policy decision or a provision in the statute, as in the instant matters, is assailed. “25. Interference with the policy decision and [the] issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the court to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional. That too, where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But, the courts are not to plunge into policy-making by adding something to the policy by way of issuing a writ of mandamus. There the judicial restraint is called for remembering what we have stated in the beginning. The courts are required to understand the policy decisions framed by the executive. If a policy decision or a Notification is arbitrary, it may invite the frown of Article 14 of the Constitution. ….” [Emphasis is mine.] 194.4. In my opinion, if at all, the observations help the cause of the petitioners. 195. The Social Action Forum for Manav Adhikar & Anr. v. Union of India, Ministry of Law & Justice & Ors. (2018) 10 SCC 443 was a case where the Supreme Court was, inter alia, considering the viability of some of the directions issued by one of its benches in the matter of Rajesh Sharma & Ors. v. State of U.P. & Anr. v. Union of India, Ministry of Law & Justice & Ors. (2018) 10 SCC 443 was a case where the Supreme Court was, inter alia, considering the viability of some of the directions issued by one of its benches in the matter of Rajesh Sharma & Ors. v. State of U.P. & Anr. (2018) 10 SCC 472 in the context of Section 498A of the IPC. 195.1. The Supreme Court, however, concluded that some of the directions contained in Rajesh Sharma did not protect the interests of married women which was the avowed object of Section 498A of the IPC. Therefore, the Court, inter alia, did away with the direction issued for the constitution of a Family Welfare Committee under the aegis of the District State Legal Authority and the consequent powers that had got conferred upon it. 195.2. Pertinently, while doing so, the Supreme Court also recognized the fact that a court could, in certain cases, in furtherance of fundamental rights, issue directions in the absence of law. In this context, reference was made to Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244 ; Vishaka; and Common Cause (A Registered Society) v. Union of India & Anr. (2018) 5 SCC 1 . 196. State of Bihar & Ors. v. Bihar Distillery Ltd., (1997) 2 SCC 453 , was cited by the intervenors to rely upon the dicta that the Court should presume the constitutionality of a statute enacted prior to the Constitution coming into force as it represented the will of the people. As alluded to above, even after having applied the presumption of constitutionality doctrine to MRE, I still could not bring myself to agree with the intervenors that MRE was not violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution. 197. In Raja Ram Pal case, the Supreme Court was called upon to consider the following two issues: First, whether the two Houses of the Parliament in the exercise of powers, privileges and immunities, as contained in Article 105 of the Constitution, could expel their respective members from the membership of the House. Second, if such power existed, could it be made subject to judicial review and, if so, what was the scope of the judicial review. 197.1. Second, if such power existed, could it be made subject to judicial review and, if so, what was the scope of the judicial review. 197.1. Mr Kapoor had cited this judgment to contend that the motive of the Legislature in enacting a particular statute was beyond the scrutiny of the courts. One cannot quibble with this proposition, but what is important is the far reaching (and I would say seminal observations) that were made by the Constitution Bench in the Raja Ram Pal case. The bench enunciated the principle that where governance is rooted in the constitution, absolutism is abhorred and that while due deference has to be given to a co-ordinate organ such as the Parliament, its acts are amenable to judicial scrutiny. “431. We may summarise the principles that can be culled out from the above discussion. They are: xxx xxx xxx (a) Parliament is a coordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny; (b) The constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere coordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi-judicial decision; xxx xxx xxx (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; xxx xxx xxx (h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; xxx xxx xxx (s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny; (u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, malafides, non-compliance with rules of natural justice and perversity.” [Emphasis is mine.] 198. The judgment in Sunil Batra v. Delhi Administration & Ors. The judgment in Sunil Batra v. Delhi Administration & Ors. (1978) 4 SCC 494 was relied upon by the intervenors to emphasize the observations which, in effect, conveyed that if certain provisions of law construed in one way would be consistent with the Constitution and, if another interpretation is placed, which would render them unconstitutional, the Court would lean in favour of the former construction. 198.1. To my mind, once again, I cannot but wholly agree with this enunciation of law as captured above. However, having concluded that MRE read in whichever way is not only unconstitutional and morally repugnant, the aforementioned observation, read out of context, will not help shore up the case of the intervenors. The judgment in Sunil Batra’s case was rendered based on the letter written by the petitioner to the Supreme Court concerning the brutal assault by a Head Warder on another prisoner. It is in this backdrop that the court issued a slew of directions to the Delhi Administration in the interest of incarcerated persons. 199. A perusal of the judgment in Anuja Kapoor v. Union of India & Ors, in W.P.(C) No. 7256/2019 passed on 09.07.2019 shows that directions were sought from the court to embed in law, marital rape, as a ground for divorce. It is in this context, that the petitioner sought the issuance of further directions for framing appropriate guidelines, laws and bye-laws. The court by a brief order dismissed the petition, inter alia, holding “3. Drafting of the law is the function of Legislature and not of the Court. Court is more concerned in the interpretation of the law rather than the drafting of the laws…..This is a function of the Legislature ……..” 199.1. The argument advanced on behalf of the petitioners is that only when the impugned provisions are struck down or removed from the statute can the Legislature take the next steps in the matter; I tend to agree with this submission. 199.2. The aforesaid order does not, in my view, by any stretch of the imagination, suggest that the court cannot examine the legal tenability of the impugned provisions or that a litigant oppressed by a provision in the statute should wait till such time the executive or the Legislature decides to act in the matter. 200. In Mohd. 199.2. The aforesaid order does not, in my view, by any stretch of the imagination, suggest that the court cannot examine the legal tenability of the impugned provisions or that a litigant oppressed by a provision in the statute should wait till such time the executive or the Legislature decides to act in the matter. 200. In Mohd. Hanif Quareshi & Ors v. State of Bihar & Ors., AIR 1958 SC 731 , a challenge was laid to ban imposed in the States of Bihar, Uttar Pradesh and Madhya Pradesh concerning the slaughter of cows. A bunch of petitions under Article 32 of the Constitution were filed to strike down the ban. The Court in its judgment, reiterated the meaning, scope and effect of Article 14 of the Constitution. The Court also ruled, which is something that the intervenors lay stress on, as noticed above, that presumption of constitutionality doctrine should apply to a statute enacted by the Legislature and that, if the same is assailed, the burden lies upon one who brings the challenge to the Court. [See paragraph 15 of Mohd. Hanif Quareshi.] 200.1. Pertinently, after having expounded on the scope and effect of Article 14, the Court upheld the Bihar Act insofar as it prohibited the slaughter of cows of all ages which included the calves but went on to declare as “void” the slaughter of she-buffaloes, breeding buffaloes and working buffaloes as the impugned provision did not prescribe a test or requirement as to their age or usefulness. This part of the Act was struck down as, according to the Court, it violated the petitioner's fundamental rights under Article 19(1)(g) of the Constitution. [See paragraph 45 of Mohd. Hanif Quareshi.] 200.2. What emerges clearly from the judgment is that unless the differentia, based on which classification is made, meets the nexus test, such classification would not pass muster of the fundamental rights provided in the Constitution. 200.3. In the instant matters, the position is quite similar and, therefore, in my view, the judgment supports the contentions advanced by the petitioner. 201. Briefly, in Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay Environmental Action Group & Ors., AIR 2006 SC 1489 , the challenge laid, inter alia, concerned the interpretation that had to be accorded to the amended Development Control Regulation No. 58, framed by the State of Maharashtra. 201. Briefly, in Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay Environmental Action Group & Ors., AIR 2006 SC 1489 , the challenge laid, inter alia, concerned the interpretation that had to be accorded to the amended Development Control Regulation No. 58, framed by the State of Maharashtra. A public interest petition was filed before the Bombay High Court by persons who claimed to be the residents of Mumbai and who were desirous of protecting open spaces in the city for preserving ecological balance and for providing public houses to the needy. The Bombay High Court while allowing the writ petition had, inter alia, held that amended DCR 58 which concerned open lands would also apply to the land which turned into open space after the demolition of the structures that were built upon such land. It is in this backdrop that the matter reached the Supreme Court. The Supreme Court made some telling observations, which once again, in my view, only re-emphasize the principle that constitutional courts are vested with the power to carry out judicial review of not only legislation and subordinate legislation but also policy decisions, albeit, with usual caveats. [See paragraphs 103 to 111 and 114 to 120.] 201.1. It needs to be stated that the Court accepted the dicta enunciated in its earlier judgment rendered in Anil Kumar Jha v. Union of India & Ors. (2005) 3 SCC 150 that it could interfere even with a "political decision", although, it may amount to entering the “political thicket”. Besides this, the observations made in paragraph 120 that where issues brought before the court concerned enforcement of human rights, the Court's interpretation and application of constitutional principles is not limited to the "black letter of [the] law". 201.2. The Court also observed that expansive meaning to such rights has been given by taking recourse to "creative interpretations” which, in the past has led to the creation of new rights. The principles adverted to by the Supreme Court in this case only strengthen the cause of the petitioners. 202. Shri Ram Krishna Dalmia & Ors. v. Shri Justice S.R. Tendolkar & Ors. AIR 1958 SC 538 case was adverted to by the Supreme Court in Mohd. Hanif Quareshi's judgment. The principles adverted to by the Supreme Court in this case only strengthen the cause of the petitioners. 202. Shri Ram Krishna Dalmia & Ors. v. Shri Justice S.R. Tendolkar & Ors. AIR 1958 SC 538 case was adverted to by the Supreme Court in Mohd. Hanif Quareshi's judgment. Apart from the reiteration of the principle that the constitutionality of a statute is to be presumed and that the burden lies upon the one who assails the same because the legislature understands the need of its own people, there were several other principles which were alluded to by the Court after examining the whole host of cases. Amongst others, two important principles the Court adverted to are set forth hereafter: "11. xxx xxx xxx (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. … 12. xxx xxx xxx (ii) A statute may direct its provisions against one individual person or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the court will strike down the law as an instance of naked discrimination, as it did in Ameerunnissa Begum v. Mahboob Begum [(1953) SCR 404] and Ramprasad Narain Sahi v. State of Bihar [(1953) SCR 1129].” [Emphasis is mine.] 203. The facts obtaining in Beeru v. State NCT of Delhi 2014 [1] JCC 509 were briefly the following: 203.1. The allegation against the appellant accused was that he had raped a minor girl aged 14 years. The appellant accused was the uncle of the victim. The trial court had convicted the appellant accused and imposed life imprisonment which was reduced to 10 years by the High Court while sustaining the conviction. The allegation against the appellant accused was that he had raped a minor girl aged 14 years. The appellant accused was the uncle of the victim. The trial court had convicted the appellant accused and imposed life imprisonment which was reduced to 10 years by the High Court while sustaining the conviction. The observations made in paragraph 36 of the judgment wherein reference is made to the difference in punishment imposed under sub-section (1) as against sub-section (2) of Section 376, in my view, only states a fact which is discernible upon a bare reading of the said provisions. 203.2. What would have to be borne in mind is whether or not rape in a particular set of circumstances can be classified as aggravated rape. Thus, punishment as provided under sub-section (2) of Section 376, may get attracted in a given case. I have already indicated above that in any case the offending husband will not fall within the ambit of Section 376(2)(f) of IPC. 204. Saregama India Ltd. v. Next Radio Ltd. & Ors. (2022) 1 SCC 701 case concerned a challenge to an interim order issued by a Division Bench of the Madras High Court in a bunch of appeals. Before the Madras High Court, appeals had been filed under Article 226 of the Constitution to assail the validity of Rule 29(4) of the Copyright Rules, 2013 [in short ‘2013 Rules’]. The appellants before the Court were aggrieved by the interim directions issued by the Division Bench even while the main challenge was still pending before it. It was also the contention of the appellants that the High Court via an interim order had re-written the provisions of Rule 29(4) of the 2013 Rules. The Supreme Court, agreed with the contentions of the appellants and in that context, inter alia, observed that a court could not rewrite a statute and/or transgress the domain of policy making. [See paragraphs 20 and 21.] 204.1. This apart, the Supreme Court reiterated its power of judicial review and, thus, inter alia, observed as follows: "22. The court is entrusted by the Constitution of [sic with] the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if it is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. The court is entrusted by the Constitution of [sic with] the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. A statute may be invalidated if it is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature. ….” [Emphasis is mine.] 204.2. The instant matters do not involve rewriting of the provision as is sought to be conveyed on behalf of the intervenors. 205. In the Shayara Bano case, there were two neat questions which arose for consideration before the Court. First, whether the Shariat Act recognized and enforced triple talaq as a rule of law to be followed by the Courts in India. Second, whether personal laws are outside the ambit of Article 13(1) of the Constitution. In this context, the correctness of the judgment rendered by the Bombay High Court in the State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72 was required to be examined. 205.1. Interestingly, the petitioners before the Supreme Court who lay challenge to the triple talaq [i.e. talaq-e-bidaat], as applicable to Sunnis, were supported by the Union of India. One of the arguments that is noted by the Court which was advocated by the Muslim Personal Law Board (and, those, who supported the said argument) while resisting the petitions filed before the Court was that because personal laws were beyond the pale of fundamental rights, they could not be struck down, and therefore, the Court should "fold its hands" and "send Muslim women and other women’s organizations back to the legislature, as according to them, if triple talaq is to be removed as a measure of social welfare and reform under Article 25(2), the legislature alone should do so." Both the petitioner along with the Union of India opposed this plea. 205.2. Ultimately, the Court held that triple talaq was manifestly arbitrary, in the sense, that marital ties could be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation. 205.3. The Court went on to hold that triple talaq [i.e. talaq-e-bidaat] was violative of Article 14 of the Constitution. Accordingly, the Court declared Section 2 of the Shariat Act void to the extent it recognized and enforced triple talaq. 205.4. 205.3. The Court went on to hold that triple talaq [i.e. talaq-e-bidaat] was violative of Article 14 of the Constitution. Accordingly, the Court declared Section 2 of the Shariat Act void to the extent it recognized and enforced triple talaq. 205.4. The argument advanced by Mr Sai Deepak that the Court only declared triple talaq as unconstitutional and did not criminalise it and, therefore, principles laid down in Shayara Bano's case will not apply to the instant matters is completely untenable. The judgment etched out in great detail the contours of Article 14 and in that context the court observed that the “thread of reasonableness runs through the entire fundamental rights Chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. ….." [See paragraph 230.] 205.5. Thus, merely because the consequential steps that should be taken upon triple talaq being struck down were not up for consideration before the court, would not have me conclude that the principles enunciated by the court concerning Article 14 cannot be taken recourse to in the instant matters. 206. The judgment in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 , to my mind, has no relevance to the issue at hand. Kartar Singh dealt with challenge laid in a bunch of petitions to various TADA Acts. The majority judgment upheld the legislative competence of the Parliament to frame the impugned laws. The Court also used the reading down tool [or should I say filled the gap] and went on to hold that the word "abet" as defined in Section 2(1)(a) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [in short "1987 Act"] being vague and imprecise would mean "actual knowledge or reason to believe" to bring the person within the ambit of the definition. Inter alia, the Court also struck down Section 22 of the 1987 Act on the ground that it violated Article 21 of the Constitution. Although, the intervenors placed reliance on paragraph 130 of the judgment in which an observation has been made that vague laws offend several important values and that unlawful zones in law should be clearly marked out; in my opinion, none of these observations has any bearing on the issue at hand. 207. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. 207. In Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. (1985) 1 SCC 641 , the Court was considering the tenability of Section 32 petitions filed before it. The petitions assailed the imposition of import duty on news print. The case set up by the petitioners was that imposition of duty on news print which enjoyed total exemption till a particular date, had a direct and crippling effect on freedom of speech and expression guaranteed by the Constitution. The Court, ultimately, directed the government to reexamine the issue and consider the extent to which exemption ought to be granted in respect of news print imported in the period subsequent to March 1, 1981; albeit, after taking into account relevant matters. 207.1. In this context, certain other directions were also issued. Once again, to my mind, this judgment does not advance the case of the intervenors. The observations picked up from the judgment without reference to context can lead to conclusions which are untenable in law. 208. The judgment rendered in State of Tamil Nadu & Ors. v. Ananthi Ammal & Ors., (1995) 1 SCC 519 , in my opinion only reiterates the well-established principles enunciated by the Courts in various judgments concerning Article 14 of the Constitution. The observations on which, intervenors seek to rely are contained in paragraph 7 of the judgment. The court therein has merely observed that when a statute is challenged as being violative of Article 14, it should be put to test on its own strength and although aid of another statute on a similar subject could be taken, it can at best be referred to indicate what is reasonable in a given context. One can have no quarrel with the proposition that is sought to be propounded on behalf of the intervenors based on observations made in paragraph 7 of the judgment. 208.1. Both sides have referred to statutes to explain their point of view. Complementary statutes can only aid the court in forensically examining a provision and testing its tenability. 209. The issue that arose for consideration in Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors. 208.1. Both sides have referred to statutes to explain their point of view. Complementary statutes can only aid the court in forensically examining a provision and testing its tenability. 209. The issue that arose for consideration in Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors. 1974 (4) SCC 222 was whether the Probation of Offenders Act, 1958 [in short "1958 Act"] would apply to the respondents who were charged and convicted for possession of gold which was liable to be confiscated under Section 111 of the Customs Act, 1962. Thus, the court was called upon to rule whether the 1958 Act could apply to the offences adverted to in the Customs Act and Part XII-A of the Defence of India Rules, 1962. The Court held that there was no impediment in the 1958 Act being applied to the respondents. It is in this context that an observation was made in paragraph 12 with regard to the different punishments being meted out for similar offences. The observations made therein also drew attention to aspects such as antecedents as also to the physical and mental condition of the offenders, which, according to the court, had to be borne in mind while applying the provisions of the 1958 Act. 209.1. The point to be noted is, in the instant matters, there is a complete prohibition on triggering the criminal law qua one set of offenders on account of the presence of the MRE in the main provision. The question concerning sentencing would arise, once, that prohibition is lifted. 210. To my mind, the case of Vidya Viswanathan v. Kartik Balakrishnan 2015 (15) SCC 21 has no applicability to the issue which arises for consideration in the present case. This was a case where the Supreme Court was called upon to rule on the issue as to whether mental cruelty could form the basis for seeking a decree for divorce. The Court, sustained the High Court judgment in the given set of facts and, thus, established that mental cruelty could form the basis for seeking a decree for divorce. 210.1. In this case, divorce was sought by the husband. 210.2. Mr Kapoor sought to rely upon the observations made in paragraph 12 of the judgment. The observations made in paragraph 12 allude to the proposition that denial of sexual intercourse could amount to mental cruelty. The issue at hand is entirely different. 210.1. In this case, divorce was sought by the husband. 210.2. Mr Kapoor sought to rely upon the observations made in paragraph 12 of the judgment. The observations made in paragraph 12 allude to the proposition that denial of sexual intercourse could amount to mental cruelty. The issue at hand is entirely different. We are dealing with a question as to whether a husband can seek sexual communion with his wife without her consent and/or her willingness. The judgment, in my opinion, has no application to the instant matters. 211. In the case of Sant Lal Bharti v. State of Punjab, (1988) 1 SCC 366 , the Supreme Court was called upon to rule whether the judgment of the High Court ought to be sustained since it had dismissed in limine the appellant’s writ petition. The Court noted that the petition lacked material particulars and, therefore, it was not inclined to interfere with the judgment of the High Court. It appears what was assailed before the High Court, albeit, without setting out material particulars, was the vires of Section 4 of the East Punjab Urban Rent Restriction Act, 1949. 211.1. It is in this context that the Court had made the observations that Article 14 does not authorize striking down a statute of one State by comparing a statute of another State on the same subject and, thus, establishing that the impugned statute was discriminatory. A close look at the observations made in the judgment would show that the appellant had sought to advert to the Rent Acts of other States i.e., Assam, Tripura and Haryana. Mr Kapoor has extrapolated this observation to contend that in examining the viability of the impugned provisions, this Court cannot look at the judgments and legislations of other jurisdictions on rape laws. 211.2. It is well accepted that Courts, while examining matters, take the aid of judgments rendered by other Courts only to help them reach a correct conclusion with regard to the impugned statute and/or provision. It is important to remind ourselves that our Constitution is based on ideas and provisions found in the Constitution of other countries such as the United States, Canada and Australia, and, therefore, to even suggest that one cannot look at views prevailing in other jurisdiction would be akin to an ostrich burying its face in sand. 212. It is important to remind ourselves that our Constitution is based on ideas and provisions found in the Constitution of other countries such as the United States, Canada and Australia, and, therefore, to even suggest that one cannot look at views prevailing in other jurisdiction would be akin to an ostrich burying its face in sand. 212. The issue which arose for consideration in H.P. Gupta & Anr. v. Union of India & Ors (2002) 10 SCC 658 concerned grant of two advance increments to Junior Telecom Officers in the Telecommunication Department who acquired a degree in engineering while in service. Since the appellants before the Court already possessed a degree in engineering, they assailed the action of the respondents as being discriminatory. The Court, did not entertain the challenge and while dismissing the appeal observed that there cannot be “perfect equality” in any matter on an “absolute scientific basis”. It went on to hold that there could be certain inequities. In my view, the observations made in the context of incentives granted to one set of employees for attaining a higher qualification while in service cannot be compared with the impairment of rights of married women who are exposed to a criminal offence. This submission, in my opinion, has resulted from a complete misreading of the ratio of the judgment. 213. In Sushil Kumar Sharma v. Union of India & Ors., (2005) 6 SCC 281 , the Supreme Court was dealing with an Article 32 petition which sought a declaration to the effect that Section 498A of the IPC ought to be declared unconstitutional. The Court repelled the challenge. The Court observed that, if a provision of law is misused, it is for the legislature to amend, modify or repeal the same. This observation and the ratio of the judgment sustains the view that if MRE is struck down, its consequent misuse, if any, as is apprehended by the intervenors can, first of all, as indicated above, be dealt with by the Courts and, if deemed necessary, the legislature could step in to carry out corrective measures. 214. Mr Kapoor has cited Vishaka to establish that legal vacuum, if any, can only be filled by the Supreme Court by exercising powers under Article 142 of the Constitution. Once again, this is a proposition which one cannot but agree with. 214. Mr Kapoor has cited Vishaka to establish that legal vacuum, if any, can only be filled by the Supreme Court by exercising powers under Article 142 of the Constitution. Once again, this is a proposition which one cannot but agree with. The point which arises in the instant matters is not about filling the legal vacuum but about doing away with the impugned provisions which violate the fundamental rights of married women. 215. Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors. (2009) 16 SCC 517 was cited by Mr Kapoor to support his submission that this Court could make recommendations to the executive and/or the legislature. In this context, observations made in paragraph 34 of the judgment are relied upon. This aspect, in my view, is matter specific. 215.1. Interestingly, on the one hand, it is contended on behalf of the intervenors that this Court should keep its hands off in respect of matters concerning MRE, and, on the other hand, it calls upon the Court to make recommendations. There is, if I may say so, some amount of incongruity in the submission. 216. The observations made by the Supreme Court in Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702 concerning what constitutes a marriage, once again, are facets with which one cannot quarrel. That said, Mr Kapoor loses sight of the fact that the issue before us is whether the edifice of marriage would survive once a woman is subjected to marital rape. 217. The judgment in Amit Kumar v. Suman Beniwal 2021 SCC OnLine SC 1270 is cited by Mr Kapoor to take forth his argument that there are provisions available in other statutes such as HMA which can come to the aid of the wife. There is no gainsaying, as noted above, that there are statutes which provide for civil remedies for a married woman. However, as adverted to above, there is no remedy in law available to a married woman when she is subjected to rape by her husband. XIII Summing up 218. There is no gainsaying, as noted above, that there are statutes which provide for civil remedies for a married woman. However, as adverted to above, there is no remedy in law available to a married woman when she is subjected to rape by her husband. XIII Summing up 218. Thus, if I were to capture how women view the subsisting inequity which gets displayed daily in their relationship with men generally, I could do no better than quote a short extract from an article contributed by Ms Marya Manes titled “The Power Men Have over Women” [which forms part of a publication taken out by Reader’s Digest Asia Ltd., HOW TO LIVE WITH LIFE, First Edition, at page 96 and 98]: "The power men have over women is that they wear neckties, use shaving cream and are usually bigger than we are. They are not necessarily brighter, but they usually have us where they want us. …. ….But here we come, I think, to the old and lingering inequity between the sexes. Everything in the long history of the male has conspired toward his self-assurance as a superior being. Everything in the long history of the female has conspired toward her adaptability to him, whether as [a] wife, lover or mother. We are bred to care for what he thinks, feels and needs more than he is for what we think, feel and need. There is no valid comparison between a man's economic support of a woman and her hourly involvement in caring for him. We worry more when he looks seedy than he does when we do because we notice him more. We worry more when he looks bored at a party than he does when we do. (He doesn't see it, anyway.) We concern ourselves daily with what he would like to eat, whom he would like to see, where he would like to go...” 219. We worry more when he looks bored at a party than he does when we do. (He doesn't see it, anyway.) We concern ourselves daily with what he would like to eat, whom he would like to see, where he would like to go...” 219. To sum up, the message that married women wish to convey to their husbands, (and in this regard I can, once again, do no better than quote the words used by late Ms Ruth Bader Ginsburg, former US Supreme Court Judge, when appearing as an amicus in Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson, Secretary of Defense, et al., 1973 SCC OnLine US SC 101, which, in turn, is attributed to Ms Sarah Moore Grimke, an abolitionist and rights activist): “I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.” 219.1. This in a sense typifies the agony of women living in the 21st century. A journey of 300 years and more (since the time the Hale Doctrine was first enunciated) has been excruciating in terms of individual freedom. From the time when married women were considered as the property of the husband, to the time when they shed that shackle but were still not considered as individuals having a personality separate from their husbands, to the present times when they appear to be emasculated of their right to say “yes” or “no” to sexual communion with their husbands has been a journey marked by intellectual battles fought by valiant women before various forums. The sheer expanse of time should impel us to unshackle them and give them agency over their bodies. 220. Before I conclude, I must state that I agree with the submissions made by Ms John and Ms Nundy that the legislature needs to address matters concerning sentencing for the offence of rape. Their view, that a high minimum mandatory sentence does not necessarily result in greater conviction rates, needs to be examined by the concerned authorities, bearing in mind the relevant data on the subject. 220.1. That said, on sentencing, the following view of the Court of Appeal of New Zealand, needs to be captured. Their view, that a high minimum mandatory sentence does not necessarily result in greater conviction rates, needs to be examined by the concerned authorities, bearing in mind the relevant data on the subject. 220.1. That said, on sentencing, the following view of the Court of Appeal of New Zealand, needs to be captured. "4.45 An example of a consistent approach to sentencing in a jurisdiction where marital rape has become a crime is to be found in the observations of the Court of Appeal of New Zealand in relation to sentencing under section 2 of the Crimes Amendment Act (No. 3) 1985, which abolished the marital immunity. The court rejected the suggestion that there should be a "separate regime of sentencing" for rape in cases where the parties were married, and said - "Parliament has made no distinction in the penalties between spousal and other kinds of rape, and the sense of outrage and violation experienced by a woman in that position can be equally as severe...." R v N [1987] 2 NZLR 268, 270, line 50. [Emphasis is mine.] 221. It is evident, like in other foreign jurisdictions, the Executive may have to provide sentencing guidelines for trial court judges to ensure greater consistency. Likewise, I also tend to agree with the counsel for the intervenors i.e., Messrs Sai Deepak and Kapoor that the law should be gender-neutral. These are steps that are required to be taken by the Legislature/the Executive. 222. Having noticed this, I agree with the submission of Mr Gonsalves and Ms Nundy that reforms in this regard cannot be cited as an impediment in the court striking down the MRE which otherwise does not pass muster, as discussed above, of our constitutional provisions i.e., Articles 14, 15, 19(1)(a) and 21. These are the next steps in the matter which the legislature has to take up. The court’s jurisdiction to examine the matter is not tied-in with these steps that the legislature may embark upon concerning sentencing and how investigation is to progress in matters involving marital rape. As and when such steps are taken, I am sure they will attract the public gaze and attention of all stakeholders and if escalated to the court, may also require judicial examination. However, these are not matters presently within the ken of the court. 222.1. As and when such steps are taken, I am sure they will attract the public gaze and attention of all stakeholders and if escalated to the court, may also require judicial examination. However, these are not matters presently within the ken of the court. 222.1. But before all this is done, a married woman's right to bring the offending husband to justice needs to be recognized. This door needs to be unlocked; the rest can follow. As a society, we have remained somnolent for far too long. Deifying women has no meaning if they are not empowered. They are our equal half; some would delightfully say our better half. It is time that all stakeholders bite the bullet. It would be tragic if a married woman's call for justice is not heard even after 162 years, since the enactment of IPC. To my mind, self-assured and good men have nothing to fear if this change is sustained. If I were to hazard a guess, those amongst us who want status quo to continue would perhaps want to have the MRE struck down if the victim involved was his/her mother, sister or daughter. 223. As noticed right at the outset, the issue at hand raises concerns of enormous public importance, which has, both, legal and social connotations. This is demonstrable from the fact that it has already received the attention of different High Courts. [See the decision of the learned Single Judge of the Gujarat High Court in Nimeshbhai Bharatbhai and the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371.] Therefore, in my view, since the issue involves is a substantial question of general importance concerning fundamental rights of a large number of married women, it necessitates a decision by the Supreme Court. [See Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., 1962 Supp (3) SCR 549 and State Bank of India v. S.B.I. Employees' Union, (1987) 4 SCC 370 .] 224. As would be evident from above, I have not adverted to the submissions of the respondents i.e., UOI and GNCTD. Insofar as UOI is concerned, Mr Tushar Mehta, learned Solicitor General stated before us in no uncertain terms that UOI does not wish to take a stand in the matter. As would be evident from above, I have not adverted to the submissions of the respondents i.e., UOI and GNCTD. Insofar as UOI is concerned, Mr Tushar Mehta, learned Solicitor General stated before us in no uncertain terms that UOI does not wish to take a stand in the matter. In fact, affidavit(s) were filed to the effect that UOI would like to engage in consultation before moving further in the matter. On the other hand, while submissions were made at length by Ms Nandita Rao, who represented the GNCTD; on the last day, on instructions, she stated that she wished to withdraw the submissions which were made by her, in the course of the hearing, on behalf of GNCTD. Therefore, practically, the state made no case for or against the continuance of the impugned provisions on the statute. 225. That being said, the debate that ensued among the remaining counsel was rich, passionate and engaging; it would have been richer had Mr Mehta i.e., learned Solicitor General assisted the court in the matter. 225.1. I must place on record my deep appreciation for Mr Gonsalves, Mr Sai Deepak, Mr Kapoor, Ms Nundy and the two amicus curiae who appeared in the matter i.e., Ms John and Mr Rao. The wealth of material that they placed before us in the form of reports and judgments helped me in finding what I believe is the right conclusion in the matter. Regrettably, I was not able to persuade Hon'ble Mr Justice C. Hari Shankar to my point of view. He, perhaps, hears a beat of a different drummer. I respect that. 225.2. To the petitioners’ and their ilk I would say it may seem that you plough a lonely furrow today but it will change, if not now, some day. To the naysayers I would say that every dissent adds flavour and acuteness to the debate at hand, which assists the next court, if nothing else, in arriving at a conclusion which is closer to justice and truth. Conclusion 226. To the naysayers I would say that every dissent adds flavour and acuteness to the debate at hand, which assists the next court, if nothing else, in arriving at a conclusion which is closer to justice and truth. Conclusion 226. For the foregoing reasons, I declare and hold : (i) That the impugned provisions [i.e. Exception 2 to Section 375 (MRE) and Section 376B of the IPC as also Section 198B of the Code], insofar as they concern a husband/separated husband having sexual communion/intercourse with his wife (who is not under 18 years of age), albeit, without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and, hence, are struck down. (ii) The aforesaid declaration would, however, operate from the date of the decision. (iii) The offending husbands do not fall within the ambit of the expression “relative” contained in Section 376 (2)(f) of the IPC and, consequently, the presumption created under Section 114A of the Evidence Act will not apply to them. (iv) Certificate of leave to appeal to the Supreme Court is granted under Article 134A(a) read with Article 133(1)(a)&(b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court. (v) The writ petitions i.e., W.P.(C) Nos.284/2015; 5858/2017 and 6024/2017 are disposed of in the aforesaid terms. W.P.(Crl.)No. 964/2017 is kept apart and will be listed by the Registry for appropriate orders on 26.08.2022. (vi) Parties will bear their respective costs.