Thread by @lawbarandbench

#DelhiHighCourt starts hearing a bunch of petitions demanding criminalisation of #maritalrape.
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A Division Bench of Justices Rajiv Shakdher and C Hari Shankar is hearing the petitions.

Advocate Nandita Rao making submissions for Delhi Government.
#DelhiHighCourt #MaritalRape

Rao: It is my submission that exemption to section 375 does not violate the right to refuse sex because there is no compulsion upon a woman.
#DelhiHighCourt #MaritalRape

Rao: In Kusum Lata v Kanta Prasad the Court has held that sexual demand will be called a cruelty if it injures the partners. Similar judgment is from Gujarat High Court.
#DelhiHighCourt #MaritalRape

Bench: I quite frankly do not agree with these observations. What you call perversion, some couples may agree with it.
#DelhiHighCourt #MaritalRape

Bench: How can the state say no to something that the couple has agreed to. The argument you are propounding is turning everything on its hand.

Bench: You are saying a woman can claim divorce in case of perversion. The exception created a firewall. Is there a defence for the firewall that the exception creates?
#DelhiHighCourt #MaritalRape

Bench: You may say that a woman can seek divorce but does it test Article 14?
#DelhiHighCourt #MaritalRape

Rao: If Your Lordships come to the conclusion that because it is not an offence under 375 then she is compelled to have sex...
Bench: You are putting cart before the horse. Section 375 deals with rape having committed. The exception says when it is a marriage, it is no rape.

Bench: If it is between two people who are not married, then it is an offence... But the only reason the accused is not visited by penal provision is because of the exception. The core issue therefore is would it stand Article 14 and 21.
#DelhiHighCourt #MaritalRape

Rao: The challenge of 14 is does the existence of exception violates Article 21 of the woman... My humble submission is that it does not take away my right to say no in a marriage.
#DelhiHighCourt #MaritalRape

Bench: The point is she said no but the husband still imposed himself. You are saying she says no and husband says ok and then nothing happens.
#DelhiHighCourt #MaritalRape

Bench: If she says no and the man imposes...
Rao: She has a criminal remedy.
#DelhiHighCourt #MaritalRape

Bench: Why does it affects an unmarried woman's dignity but does not affect a married woman's dignity?
#DelhiHighCourt #MaritalRape

Rao: My argument is just because there is an exception does not mean that I cannot say no. The provision is different.
Bench: Have the 50 countries got it wrong?

Rao: I will show your lordship that none of the jurisdictions cited by the petitioners have similar wordings as 375.

Bench: Imagine a woman is having menstrual cycle. Husband say he wants to have sex and brutalizes her.
Rao: Then it is an offence.
Bench: When the girlfriend says no, it is an offence. The relationship cannot put it on different pedestal. The woman remain the same.

Bench: Because she is married she can take recourse to other provisions of law but cannot call it rape. That is the sum and substance of your argument right?

Rao: The act of forced intercourse is a crime whether it is wife, girlfriend or any other person. The legislature did not make it a crime under 375.

Rao: Now I will come directly to Article 14 challenge since it is concerning your lordship... It would be my submission that there is an intelligible difference between partners.

Rao now shares the UK law on rape.

Rao: There is a difference in statute in India and statute in the UK.

Rao: Different situations would create different rights in the spouse. If the person says no to sex then the person will be open to divorce.

Bench: The problem is someone has come to this court saying this exception is ultra vires Article 14 and the man cannot be let off just because of a different relationship. This is what the UK court has said. You have to persuade us against it.

Rao: The intercourse here is still unlawful but it is not a crime under 375.

Bench: At the end of the day, what is at the hear of the matter is as long as these act happen with joyful consent, it is not an offence.
#DelhiHighCourt #MaritalRape

Rao: What I am saying is that all these acts are criminalized even for a husband just not under Section 375.
#DelhiHighCourt #MaritalRape

Rao: For the group of citizenry which falls under the category of husband are till today not under section 375. If this exception is quashed your lordships will create a new offence.
#DelhiHighCourt #MaritalRape

Rao: The Supreme Court has been very clear that we do not have power to create a new offence.

Bench: Your argument that this create a new offence we will deal with. We may finally agree with you or not. We will deal with it.
Rao: The constitutional scheme does not allow judiciary to creat a new offence because they do not have the machinery of the legislature.

Justice Hari Shankar: You are not on very sound ground on that. the Court has power to strike down statutory provision.
#DelhiHighCourt #MaritalRape

Justice Shankar: If we find that exception to be unconstitutional, we can strike that down. It cannot be said that we are doing something beyond our jurisdiction.
#DelhiHighCourt #MaritalRape

Justice Shakdher: This exception is a firewell. We are seeing if this is constitutional. The fact that legislature has not done it for so many years cannot stop us.
#DelhiHighCourt #MaritalRape

Rao: My last submission is that if your lordships come to the conclusion that it is unconstitutional then it would be a creation of new law.

Rao: Your Lordships have the power to hold that this is unconstitutional but if your lordships do that it would get a citizenry under crime.
Bench: You are going way beyond.

Rao now cites a judgment of the Supreme Court in case of Ms Eera.
#DelhiHighCourt #MaritalRape

Rao: India is the only country where statutory rape is as high as 18 years.
#DelhiHighCourt #MaritalRape

Rao: Sometimes in PIL the nuances and impacts on vulnerable group...
Bench: You are right but if you think legislature gets it right when they draf it is not right. Similary we may get it wrong and the higher courts will take a call on that.
#DelhiHighCourt #MaritalRape

Bench: Okay. We will continue tomorrow.
Hearing ends. Other counsels to make their submissions tomorrow.
#DelhiHighCourt #MaritalRape