Thread by @lawbarandbench

#DelhiHighCourt will continue hearing a bunch of petitions seeking criminalisation of #maritalrape. The petitions challenge Exception provided in Section 375 of IPC which exempts a man from being charged with rape if he has forceful sex with his wife.
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Amicus Curiae, Rajshekhar Rao, will continue with his submissions today.
#DelhiHighCourt #maritalrape

A Bench of Justices Rajiv Shakdher and C Hari Shankar has assembled.
Hearing to start soon.

Justice Shakdher informs that the matter was mentioned by Solicitor General in the morning and the Centre is in process of taking some steps on the matter.
Justice Shakdher: We have told him that we are hearing the matter and it will continue till next week.

Monika Arora (for Centre) informs that the Government has invited suggestions from CJI, CJ of HIgh Courts as well as several other stakeholders over changes to be made in the Criminal laws.
#DelhiHighCourt #maritalrape

Bench: The SG mentioned specifically about Section 375. Anyways we will continue and see what is to be done.
#DelhiHighCourt #maritalrape

Amicus Curiae, Rajshekhar Rao, starts his arguments.

Rao: The Act of non-consensul sexual intercourse or 'rape' is abhorrent and inherently violative of the basic right to life and liberty guaranteed under ARticle 21 in any context.
#DelhiHighCourt #maritalrape

Justice Hari Shankar: When we talk about classifying married woman and unmarried woman. Please remember that it is about categorising a married couple and an unmarried couple. Most of the arguments canvassed so far have been on the issue of it being outrageous rather than on law.

Justice Hari Shankar: We must see the legal part of this very seriously. We must keep in mind the legal parameters.

Rao: The Supreme Court has repeatedly reminded us that the Constitution is a living document... The foundational basis of the argument is that a woman is violated and therefore there is outrage.

Rao: A rape is a rape and a rapist remain a rapist and no amount of classification and no amount of verbal jugglery can alter that reality. In this backdrop, the Exception is particularly egregious in as much as it denies a wife the ability to prosecute her husband...

... for having no consensual sex.
#DelhiHighCourt #maritalrape

Rao: Every other woman including a woman who is socially perceived as unchaste or of 'easy virtue' like a sex worker is entitled to the rights given in law but a married woman is not. This denial hits at the very core of her existence.

Rao: The effect of this in a modern day constitutional democracy would tantamount to law turning a blind eye to a gross injustice.
#DelhiHighCourt #maritalrape

Rao now cited the apex court judgment in Bodhisattwa Gautam case.

Rao: In State of Haryana v Janak Singh the Court has said that rape violates the most cherished rights of a woman.
"Rape cases have to be dealt keeping these cases in mind," Rao.

Rao: Are we not denying the wife her fundamental rights that the Supreme Court says is the most cherished rights.
#DelhiHighCourt #maritalrape

Rao: Classification based on marital status cannot justify retention of the Exception.
#DelhiHighCourt #maritalrape

Rao: Please contrast the provision with Article 14 and 21. In Puttaswamy the SC has said that right to privacy is substantial to a person's life.
Bench: Puttaswamy was unanimous that means there was no question in the minds of judges. Each one of them had the same conclusion.

Bench: I don't know why we are shy of saying it is violative of Article 14. We should stop walking on eggshells. If we are to say it is not a rape because of inter-party relationship then we are.

Bench: You gave the example of sex-worker. She can say no at any stage. Can a wife woman be placed on a lesser pedestal.

Karuna Nundy: With a sex-worker there is an expectation of sex as well.
Justice Shankar: Let us not equate the expectation of sex in a married relationship with sex in a married relationship. You are on very sticky ground with that.

Justice Shankar: Let us see if we are creating an offence we are punishing the man. Let us not just look at this from the point of view of the lady.

Justice Shankar: We cannot tinker with the main part of 375. You are going about whether it should be punished. The proviso does not say it should not be punished. If we are to say yes, we have to say every ingredient of 375 should apply even if the parties are married.

Justice Shankar: If the legislature has thought that when sex takes places and the grievance of woman is her consent was not taken, the legislature thought it should not be categorized as rape. Is it so unconstitutional that we under 226, should strike it down.

Justice Shankar: The wife tells the husband, I don't want to have sex and husband does have sex. We may feel, it should be a rape but can that be a ground to strike down? Can we say that legislature, by not categorising it as rape, has acted unconstitutionally?

Justice Shakdher: In State of UP v Chhote Lal, the SC has dealt with 375 and said that the xpressions against her will and without her consent may overlap.

*Correction. The previous quote was by Rajshekhar Rao.

Rao: The Court has said that every consent to act follows submission but submission does not mean consent.
#DelhiHighCourt #maritalrape

Rao: If a woman consciously permits the act, then it is consent.
#DelhiHighCourt #maritalrape

Rao: The exception is not a sanction to perpetrate an act upon his wife.

Rao now takes the Court through judgment in Shayara Bano case and how the Court dealt with Article 14 in the case.
#DelhiHighCourt #maritalrape

Rao: Please see Article 13. It says laws inconsistent with and in derogation of fundamental rights should be struck down. It contemplates two scenarios; inherited laws and laws made by us.

Rao: Please see the mandate in 13(2). It said the state shall not make any law in contravention and any law made in contravention should be void.

Rao: The law is usually made by the legislature. But when the legislature fails and inacts a law that is in violation then what is the Court expected to do? This is answered in Shayara Bano.
#DelhiHighCourt #maritalrape

Justice Shakdher: The SC itself said that 226 is in itself wider.

Rao: In Prem Chand Garg v Excise Commr, the SC further said that the fundamental rights form the most outstanding and distinguishing feature of the Constitution.
#DelhiHighCourt #maritalrape

Rao: Article 14 strikes at arbitrariness in State action and ensure fairness. The question one has to ask oneself is if the exception is founded on any sense.

Rao: As far as the law passed by legislature is concerned, the Courts have repeatedly held that they can be struck down. Reports after reports have found the laws to be unreasonable and they have been struck down by the Courts.

Rao now refers to Constitution Bench judgment in Indian Express Newspapers case.
#DelhiHighCourt #maritalrape

Rao: The legislature has left a few things behind and this is one of those cases.

Rao: The argument that marital rape would destroy the institution of marriage does not stand. It is said that criminal law should not be brought into the bedroom but this law has been in the bedroom for years.
#DelhiHighCourt #maritalrape

Justice Shankar: In cases like this, affidavits have no role to play. They are not even needed. Whatever they say on affidavit would hardly be a reason for us to decide anything.
#DelhiHighCourt #maritalrape

Justice Shakdher: The thing about institution of marriage. When you say it is in jeopardy, this is personal. Nothing happens to the institution because there is a problem in particular marriage.

Justice Shakdher: This was not bought by the SC in Independent Thought as well.
#DelhiHighCourt #maritalrape

Rao: The law itself recognises consent to be material but for some esoteric reason decides it to be immaterial in case of a wife.
#DelhiHighCourt #maritalrape

Justice Shakdher: If we go back to definition of rape, willingness and consent is the bedrock. You take willingness and consent out, it becomes rape. Otherwise, you introduce anything in the body, it amounts to rape.

Justice Shakdher: They may indulge in so many things but this has to be consensual.
#DelhiHighCourt #maritalrape

Rao: The law criminalises even things before penetration but what is so special in marriage that even non-consensual act of penetration is not criminalised.
#DelhiHighCourt #maritalrape

Rao: I do believe that even your lordships were to strike it down, it would not result in explosion of cases under 376. The question is how many women still face abuse, physical and verbal but still does not call it out.
#DelhiHighCourt #maritalrape

Justice Shankar: That is the line of argument that we should not go very deep into. We are dealing with constitutionality of the provision. That cannot be a parameter to strike down a constitution.

Justice Shankar: If we were to depend on that data. We would become very vulnerable.

Justice Shankar: On the aspect of trust, there is difference between other forms of trust and the nature of trust that exists between a husband and wife.
#DelhiHighCourt #maritalrape

Justice Shankar: We must keep in mind that the legislature has used the trust and fiduciary to keep it.

Rao: A marriage is a relationship which is founded on the principle where two families come together and you have to find a balance. The best quote I could find was that a happy marriage is a secret.

Rao: The law says you are two equals in the eyes of law. So, why should a husband's desire to have sex that day trump the wife's desire to not.
#DelhiHighCourt #maritalrape

Justice Shankar: I think you are using a very inappropriate example. It is not about a thappad. Grievous hurt is a very serious offence. It is not that legislature has not provided anything. Criminal remedy is provided for in that event.

Justice Shakdher: I was thinking we have moved away from creating the offence.
Justice Shankar: It is not that we are incapacitated from doing it, but we are allowed to do it in a manner permissible by law.

Justice Shankar: I think it is oversimplying to say we are not creating an offence. We can create an offence by striking down a law but not by making a law.

Justice Shakdher: Let me put it another way round... anyway Mr Rao continue.
Karuna Nundy: We will address this and we are trying very hard.

Rao: Let me put is very simply. A married woman can prosecute the offender for A-Z but an unmmaried woman can prosecute him under A-Z plus 376. Why are we shying away from saying that rape can be committed within the contours of marriage.

Rao: A situation is being created where the law says you have better remedy against a third party for the same offence but not your husband. A husband who can force himself on wife is being told that you are assaulting.

Rebecca John: The space occupied by Section 498A is completely different. They were either brought in or existed for very different reason.
Justice Shakdher: Okay, we will leave it to you to tell us that.

Rao: I am unable to comprehend the basis of this distinction.

Rao: The laws says even if you rape, you will not be charged with rape. If that is upheld in the year 2022 then I think Article 21 has not moved as far as we thought it has.

Rao: We have to answer the question if there is anything so different between a married woman, a woman who is single and who is separated they will be treated differently if raped by the same man.

Rao: I may also say that 376B is also bereft of reason. #DelhiHighCourt #maritalrape

Rao: I cannot find the justification within the yardstick we read to you.
#DelhiHighCourt #maritalrape

Rao: Please see Article 51A. We were told that it would the fundamental duty of every citizen to shed away all practices that are derogatory to women.
#DelhiHighCourt #maritalrape

Rao: Is it alright for us to tell a woman that we will tell you what your grievance is .Is it alright if we were to tell a woman that we will deny you to call it a rape even though you have been violated.

Rao: The exception denies equal protection to the wife because she is treated differently from any other woman.

Rao: Raping your wife is an offence it is just not rape in India. This happens every day.
#DelhiHighCourt #maritalrape

Bench: We will continued tomorrow.
Justice Shakdher: Ms Arora we will like to hear you tomorrow before we hear Ms John. Give us a time frame by Monday.

Justice Shankar: If you are going to say that you will revamp the entire IPC before we decide this issue, we cannot do that.
Justice Shakdher: You cannot have judges reply to issues that are for challenge before them.
#DelhiHighCourt #maritalrape

Justice Shankar suggests two issues for Justice Shakdher and Rebecca John to consider.
#DelhiHighCourt #maritalrape

Justice Shankar: Let us assume that no provision were present for wife to prosecute her husband. I am in no doubt that it should be a punishable offence. Assume there is not provision under which she can punish him. Is that a ground for us to strike down the provision?

Justice Shankar: This is one point you have to address and the second issue... Forget it, it has skipped my mind.

John: If your lordship could tell us what question are.
Justice Shankar: Please open Bar and Bench, they have reproduced whatever I have said word by word.

John: I am saying there is no overlapping space.
Justice Shakdher: We were taken on this road by the state's counsel.

Justice Shakdher: Look at their written submissions and you will be better placed to understand why they raised it. Rebecca, would you want to know what the Centre has to say?
John: Not before Monday or Tuesday because I need time to read.

Bench: We will continue tomorrow at 3pm.
Hearing adjourned.
#DelhiHighCourt #maritalrape