Thread by @LawBeatInd

Does the exception to Section 375 of Indian Penal Code discriminate against married women?
Delhi High Court to hear plea(s) challenging the constitutionality of the exception viz. Marital Rape. #Maritallaws #maritalrape

Union seeks some time to work out a consultative process, Judge says it would like to hear the case.
Union then says a comprehensive re-look is required in the case and it should not be half-hearted. #maritalrape

I suggest let the amicus make submissions, it would equip the Union too: Union (SG Tushar Mehta)
Judge says let the amcus finish. “These counsel are busy counsel!”

SG says he’d never come in the way of their submissions #maritalrape #DelhiHighCourt

Amicus begins submissions.
Senior Advocate Rajshekhar Rao: “More I read the law, I ask these questions - still unable to find basis why this provision (exception 2) should stay” #maritalrape #DelhiHighCourt

For purposes of prosecution for rape is the short question, though many aspects will be important to be looked at such as whether the criminalisation of husband can be made from pov of him being relative: Rao #maritalrape

Its been told to me several times and it is ironic, that something which concerns women is being decided by men: Justice Shakdher
It is not about gender, it is about patriarchy & citizenship: Nundy #maritalrape

Truth is even with diversity on the bench, we don’t always get the best results and we have seen that in the past: Justice Shakdher #maritalrape #DelhiHighCourt

These provisions reinstate “men will be men” #maritalrape : Rao

Issue of gender neutral laws is a debate for another day. Issue if marital rape more to do with discrimination between married women and unmarried women: Rao #maritalrape

In context of the wife it (the exception) seems to say that rape is permissible: Rao

“These are the comments that create problems. Why don’t you understand that we have to decide this issue with a dispassionate attitude!”: Justice Hari Shankar
#maritalrape

There is a jurisprudential difference between ‘consent’ and ‘willingness’. You are missing that. Till today there has not been a single argument on judgment of Supreme Court on which a statute can be declared as unconstitutional especially from criminal law lens: Justice Shankar

Till today, I haven’t been able to find a judgment which criminalises a provision in Indian precedents: Rao
#maritalrape

Foundation of consent is right to bodily integrity: Rao #maritalrape

“Against her will” necessarily means “without consent”: Rao #maritalrape

Rao reads “pyare lal v union of india”
to demonstrate similarity between will and consent. #maritalrape

What if the court finds that if we go into section 375 as an existing enactment today & we feel there is intelligible differentia (between married and unmarried couple), then should the court should strike down even if we find there is a rational differentia?: Justice Shankar

Married and unmarried women is not the differentia in this section. This is about “Act of sexual intercourse without willingness and consent of women, within parameters of marital relationship”. You cannot look at it from victims lens only: Justice Shankar #maritalrape

Exception says Act within marital sphere, it is not rape. If we keep saying it is about women who are married & unmarried women, it is problematic. It is an exception of a particular type of act within a particular scenario. Can’t make this about only women: Justice Shankar

When man and woman married, both partners have the right of reasonable sexual relation, sanctified by law to a reasonable extent & there is obligation on both parties sanctified by society, law, religion: Justice Shankar #maritalrape

Justice Shankar is essentially expressing his prima facie view that the exception cannot be looked at from singular point of consent or lens of victim only but from the point of the Act of sexual intercourse between a couple where Wife is unwilling: Justice Shankar #maritalrape

If act done by husband on wife, it is not rape. Viewed from standpoint of act, it says there has to be violation of bodily integrity without consent: Rao #maritalrape

Even an illegitimate child has rights! A marriage is a partnership of equals. If a woman denies this right of conjugality to her husband, it is not his right to force himself upon her but seek restitution of conjugal rights or separate basis cruelty: Rao #maritalrape

If a couple has had sex for 55000 times, the 55001st time, if she says no, No means no. If she goes ahead and amid the sex, she says she doesn’t want to proceed, it is rape: Rao #maritalrape

Are we placing a married woman on a lower plane? You may believe you have been raped if husband forces sex, but the law does not. Essentially, act is legitimising rape upon wife: Rao #maritalrape

Justice Shakdher says that he read the news today and the case was that there was gangrape on a woman and one of the rapists was her husband. Question is how do you deal with a situation like that? #maritalrape

“But she was the 2nd wife” (in case where in gangrape husband was one of the accused rapists): Kapoor, advocate (mens rights groups)

“How does it make a difference if wife was second or third!”: Justice Shakdher #maritalrape

Hearing ends. To continue tomorrow at 3 pm. #maritalrape

Hearing for today to continue at 3 pm - #maritalrape
Stay tuned for live updates from hearing.
#DelhiHighCourt

Bench is now in session. #maritalrape #Maritallaws

In a matter like this, there are many concerns but we are not going to shy away from this. The buck stops: Justice Shakdher #maritalrape

Rao (amicus) is arguing that principle of Equality demands that the doctrine of classification is upheld. He is essentially arguing that a classification in the exception on Marital Rape is not in consonance with Constitutional principles. #maritalrape

Rao argues that enough judgments elucidate the doctrine of classification to meet the tenets of justness, fairness and equitability, not oppressive or discriminatory. #maritalrape

Rao is saying that the court may adopt the same principle as it did while striking down section 303 of the IPC (death penalty for convict undergoing life imprisonment who has been further convicted for murder) in order to serve Article 21 in Mithu Vs. State of Punjab.

Rao is now citing Navtej Singh Johar - the judgment which decriminalised same-sex sexual intercourse between two consenting adults.
#maritalrape #Maritallaws

Rao continues to share judgments, urging the Court to strike down the exception wrt Marital Rape.
We have a mandate of a "transformative constitution", he says
#maritalrape

Supreme Court has taken the view that a woman has a right to bodily integrity, judgments have gone on to say that even a woman of easy virtue has a right to refuse or initiate sexual activity: Rao #maritalrape
Refers to this -

The Supreme Court recognises that a woman has a right to say no and by sticking to the exception, it is taking away the women's right to say no. Though it is not a sanction, essentially, this exception takes away that right: Rao #maritalrape

At the core of the offence of rape is the lack of consent and if we recognise that it is the one tool that a woman has, then is there some basis for saying, that one tool, though she has it, she cannot use the law to protect herself if she happens to be a wife?: Rao #maritalrape

The Act (Indian Penal Code) recognises only the consent of the woman. The statute is woman-centric. This is why we look at it from the perspective of only the woman: Rao #maritalrape

In context of relationship, societal concept of which is love, the possibility that this goes on in our land day in and day out in many homes is reason itself to do away with exception: Rao #maritalrape

Independent thought said - A rapist remains a Rapist regardless of relationship to victim: Rao #Maritalrape

The statute says this is not rape and this is the problem. When the Supreme Court was criminalising marital rape of minor girl between 15-18 years, it recognised this problem: Rao #maritalrape

Independent thought that there is no statute which put a woman at a lesser position than a man. It said that any statute which puts the woman at a lesser position must be done away with: Rao #maritalrape

Rao is reading Independent Thought Vs UOI. This is a landmark Judgment which criminalised rape with minor wife. #MARITALRAPE

Persons (legislature) who have the task at hand have chosen to abdicate the responsibility. To say that because parliament will take care of it perhaps in the future, your lordships should not take a step back (while deciding upon criminalisation of #maritalrape): Rao

If the object was to protect the institution, then the wife should not have been able to prosecute the husband for anything! We have come a long long way ahead of this: Rao #maritalrape

The law tells a wife who is a victim of rape by her husband that she has no right to prosecute him for the offence: Rao #maritalrape

Rao concludes:
"Marzi hai apki, aakhir Sarr hai Aapka" - I recall the Doordarshan ad
Mi Lords, May I now put that like this
"Marzi hai aapki, aakhir Varr hai Aapka"
(Its your call to make, after all he's your husband)

#maritalrape

Justice Hari Shankar to Rebecca John, Senior Adv & Amicus says that Rao put to court that the exception disables the wife from prosecuting her husband. "He has said that it takes away the right of wife. Please consider whether this is the proper analysis," he adds #maritalrape

Court will reassemble tomorrow at 3 pm to hear further arguments. At the end of the hearing, Court mentioned that many people are speculating what will be the outcome of this case.
"We will pass orders after we convene in person (both judges are hearing from home turfs)"