Thread by @lawbarandbench

#DelhiHighCourt will continue hearing arguments in a bunch of petitions seeking criminalisation #maritalrape
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A bench of Justices Rajiv Shakdher and C Hari Shankar will start hearing the matter shortly.
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Hearing starts.
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Advocate Raj Kapoor is making is submissions for one of the impleaders opposing the petition.

Bench: We have asked advocate Rebecca John to assist us in the matter and we will be dictating an order in that respect as well.
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Kapoor continues.
Kapoor: Several members of the Verma felt that marital rape has the potential to destroy the institution. There is a provision under law for cruelty against women and therefore it was felt that the committee may perhaps be doing injustice.

Kapoor now take the Court through the SC judgment in Raja Ram Pal v Hon'ble Speaker of Lok Sabha.
Kapoor: The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination of Courts.

Kapoor: If on the ground of Article 14 or any other reasoning, the exception is struck down, the husband would be in a worse condition taht the case covered under Section 376 IPC.
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Kapoor: It is settled law the the legislative wisdom of such legislation is not a ground for which the validity of the Act can be challenged.
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Kapoor: There cannot be perfect equality in any matter on an absolute scientific basis and there may be certain inequities here and there.
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Kapoor: The question here is not as to whether the act of sexual abuse on the part of husband, despite saying no by the wife is a criminal act or not... Parliament is no saying that his act is not unjustified but what it is saying is that punishment should not be under S 376.

Kapoor: It cannot be said that under the DV Act the punishment provided is not sufficient and therefore exception should be struck down and husband should suffer the same punishment as in the case of other grave offences under S. 375.
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Kapoor: Sufficiency of punishment has to be decided by Parliament only.
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Kapoor: The offence of sodomy is already punishable under Section 377.
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Kapoor: India is not a Hindu State. There are a number of different laws of Hindus, Muslims, Christian, Sikhs but IPC is applicable to all. Exception in S 375 is for benefit of all.
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Kapoor: India need not just copy-paste Western concepts or trends of other countries. The concept of Western countries cannot be used for striking down a statutory provision made by Parliament in Indian context.
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Kapoor: Article 14 does not authorize the striking down of a law of one State on the ground that it is in contrast with a law of another State.

Kapoor: Let Parliament be the final authority to decide the Exception in Section 375.
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Kapoor: Overall, what I want to submit is that if despite saying no, husband uses force is he justified? No absolutely not. But the Parliament says it cannot be made punishable under Section 376.

Kapoor: The question is if the exception is struck down, a husband's position would be worse than others.
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Bench: So you are justifying the retention on the ground in case where couple is separated the punishment is less?
Kapoor: He can't be punished worse.
Bench: None of us know what the legislature had in mind.
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Bench: The parliament may do in its wisdom whatever it sees necessary. The problem is when the couple is living under one roof, there is a firewall but if the relationship is different he is open to punishment.
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Karuna Nundy: We have challenged Section 376B on the grounds that it is violative of Article 14 as well.

Kapoor: Since the main challenge is to Exception 2, in Independent Thought..
Bench: We are aware of that. They were dealing with a child centric issues. It can also not be said that they have given a clean chit to Exception 2.

Bench: There are several strands to that judgment as well. They have said it will apply only for 18 and above.
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Kapoor: If we are thinking whether exception is struck down or now, we would have to think of its consequences as well.
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Kapoor: In married life sometimes very serious allegations are made and they get settled on compromise.
Bench: You have raised some substantial points and we will deal with that.
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Kapoor: The act, no doubt, is a criminal act but we will have to see what is the punishment for that.
Bench: When you people keep saying parliament, there are numerous instances when parliament followed SC judgments.

Bench: We will see how the points raised by you pans out.
Bench: Who is the next person to argue?
Ritwik Bisaria for Men Welfare Trust says he will make submission.
"We got registered in 2017," Bisaria.

Bench: What kind of work do you do?
Bisaria: We help men in various litigation. We get over 2 lakh calls. We have been working for the welfare of men.
Bench: You don't help women?
Bisaria: No sir.

Bisaria: Begins his submission.
He shares a document of 57 pages.
Bench: We can't hear you for 57 pages. Please restrict it to three pages.
Bisaria: We have the short note as well.
Bench: Please go through the short note.
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Bench: Are you a lawyer.
Bisaria: No, I am an engineer.
Raghav Awasthi interferes to say that the organisation should prove its locus.
Bench: It's fine. We need to have their point as well.
Nundy: They do not occupy the field of men.
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Bisaria continues.
Bisaria: The UK judgment was about a couple that was living separately. This is also covered in Indian law.

Bisaria: There has been a selective representation of other country's laws. The countries listed by the petitioners are selectively represented.

Bisaria: Most states in the US have various checks and balances apart from being gender neutral on sexual violence... There is the limitation period for filing a complaint.
Bench: How does the limited period work there?

Bisaria: Limitation period in state of South Carolina is 35 days.

Bench: The problem here is that neither are you an expert on the foreign law and neither are we. We may look at for whatever they are worth but mostly we would have to go by the statute we have here.
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Bench: Spending too much time on that is not going to help anyone.
Bisaria: I am submitting this because there cannot be a selective look at the international laws.
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Bisaria: The exception in S 375 is not a license to commit crime. There are several sections in the IPC that deal with exceptions.
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Bisaria: There are other sections as well where married couples are treated on a different lever. IPC S 136 is there and similarly S 216A is also there.
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Bisaria: Article 15 of the Constitution prohibits discrimination on several grounds. Martial status is not unconstitutional.
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Bisaria: Article 14 talks about equality before the law but not equality under the same law.
Bench: You are not saying something which is new. Is that all?
Bisaria: I am just talking about points that others did not go into.
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Bisaria: Suppose the husband tells his wife that I will give you a gift and they have a good time. In the next morning he finds his bank is robbed and he fails to give the gift, that would amount to misconception of facts.
Bench: We did not understand what you said.

Bisaria: As per NCRB, almost half the complaints are against friends or live-in partners.
Bench: There is a lot of data which shows that most of it is not recorded but in counselling they reveal all that.

Bench: Are you trying to tell me that this does not happen at all? If it were not happening there wouldn't be an exception.
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Bisaria concludes.
Bench: Okay, who else?
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Amit Lakhani for MWT makes submissions.
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Lakhani: Suppose a couple goes out, drinks and engages in sexual act after getting home. This would count as rape because consent under intoxication cannot be right.

Lakhani: There are circumstances when a newly wedded wife say I do not want to have sex and husband respects that. Sometime later, the family persuades and then she agrees. Some years later she can come back and say I was under coercion.
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Lakhani concludes.
Amicus Rajshekhar Rao starts his submissions now.
Advocate Satyakam points out that the Union has not made its submissions as yet.

Advocate Monika Arora (for Centre) says there are certain facts that are not on record and she will file her affidavit.
Bench says it is in the final hearing and will not entertain any affidavits. "You can submits your written submission."

Arora: There are some consultative process that is going on.
Bench: Okay Mr Rao you start.

Amicus Curiae, Rajshekhar Rao starts his submissions.
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Rao: The more time I spent on this, I realized this is a bad provision.
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Rao: The parliament has had multiple opportunities to evaluate this provision but they have kept it.
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Rao: If a couple is in courtship, if the man forces himself on a woman, he is committing rape. Suppose if they are engaged, he still commits an offence. Five minutes before the marriage, it is not an offence but five minutes later, it is an offence.

Rao: The woman cannot punish him under 375. A few years later she decides she moves out and says I want to be separate. She sleeps on the same bed but says I am not with you.

Rao: Section 376B gives her some rights. Your Lorships have effectively said that act of rape dehumanises the existence of a woman.

Rao: The question therefore is should the court wait and see this happening. The mere fact that there are not so many reported numbers is not a reason to get away from constitutional questions as to whether it is violative of Article 14 and 21.

Rao: The law is quite clear. All you have to see is whether there is a classification and whether there is a reasonable basis for classification.
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Rao: Every day that the act remain on the book, a section of population is being denied to call a rape a rape.
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Rao: The law considers these relationship on a slightly different plane.
Rao: I have not understood the provision. That should tell you how much thought has gone into this.
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Rao: Please look at Section 376C.

Rao: Please also see the explanations. There is something incongruent here. The point is law places a premium on relationships and greater responsibility on those having fiduciary capacity.
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Rao: Please see exception 1 as well. It provides exception for medical procedures but even there consent is necessary.

Rao: As far as exception 2 is concerned, the silver lining is that a woman is better off, as matter of law, is that when she is assaulted by a stranger. The more I think about it, the less I am able to justify it from a Constitutional standpoint.

Bench refers to the SC judgment in Independent Thought and the basis of relationship referred therein.
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Justice Shankar: When we look at Independent Thought, the issue was obviously not what is before us. One of the points, the other side has raised is that SC has said please do not consider it as an opinion on exception in 375.
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Justice Shankar: Even when they lay down a law they say it should not be treated as Euclid's law.
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Justice Shakdher: The point I am trying to make is that there is a misunderstanding of ration. There is certain amount of confusion in minds of people as regards what the SC judges were trying to say.
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Justice Hari Shankar: You went on the aspect of trust and therefore the law places and additional stress. Please respond on two aspects on trust and fiduciary as well.
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Justice Shankar: There two points the other side argued which we need an answer to. One point is we are not considering whether sex without consent be punished or not.
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Justice Shankar: We are concerned as to whether this act should be punished as rape. The legislature did not say that this act cannot be punished they have chosen it to not be punished as rape.
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Justice Shankar: The legislature says when husband and wife are married this is not rape. We have to prove that this falls within the definition of rape.

Justice Shankar: Can we say if there is husband who has sex without wife's consent is the same when it happens outside marriage?

Justice Shankar: Prima facie I feel there is some distinction between the two.
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Justice Shankar: These are all the aspects on which we would like yours and Rebecca's assistance. We are not striking down a civil exception, it is a criminal provision.

Justice Shankar: There are two aspects, are we creating an offence. I we are, is it permissible for us to do so? One argument is we are not, we would like your view on that.

Justice Shankar: If a man had committed this offence before our judgment, it would not be an offence.

Justice Shankar: This argument that the Court cannot create an offence is predicated on the fact that Court cannot legislate.

Justice Shankar: If we feel this is unconstitutional, we can do it. Then creation or not creation of an offence won't matter.
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Justice Shankar: We have not been shown the deliberations of parliament on this issue.
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Justice Shakdher: We will continue tomorrow.
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Justice Shakdher: According to me just as I heard Justice Shankar, the creation of an offence is a red herring. We are not directing the parliament.
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Justice Shakdher: Tell us when is when the court say it is an offence but in these circumstances, it will not.
Rao: I think this is more of a Article 21 issue than 14.

Justice Shakdher: We are well past the argument of so many years and wisdom.
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Justice Shakdher: As far as misuse is concerned, which provision of which law is not misused.
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Justice Shakdher: Should we step back whenever there is a gray area. For example S 377 was decriminalised. The parliament had all the opportunity to correct it but they did not.

Justice Shakdher: We can't just look away the other way. We may be right, we may be wrong.
Bench: We will continue it tomorrow at 3 pm.
Hearing over.