Thread by @lawbarandbench

#DelhiHighCourt to continue hearing a batch of petitions demanding criminalisation of #MaritalRape
barandbench.com/news/litigatio…

A bench of Justices Rajiv Shakdher and C Hari Shankar will hear the arguments of Sr Advocate Rebecca John.
Hearing is likely to start at 3 pm.
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Hearing starts.
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Advocate Lalit Kumar says he has filed an application on behalf of an NGO and wants to make some submissions against striking down the exception.
Bench: We can't allow that.
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Bench: If we permit you at this stage, we will have a host of other coming before us. This matter will never end.
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Bench: Please given your suggestions to Mr Kapoor who has already argued and he will put it forth.
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John starts with her submissions.
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John: I will be following a certain structure also keeping in mind the questions asked by J Shankar.
John: I will request you to allow me to argue at length about the history of Section 375.
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John: I will start with less controversial argument as to what constitutes an Exception in criminal law.
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John: There are general and special exceptions in criminal law. Section 300, 375, 499 and so and so forth have exceptions that are special.
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John: Section 105 of the Indian Evidence Act guides us as to how Exceptions are to be dealt with.

The said section can be read here.
indiankanoon.org/doc/429611/
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John: Even with respect to burden under 105. The Courts have guided us as to what the burden of proof required is when someone pleads that exception.

John says she has submitted three judgments on the aspect.
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John: In all these three judgment the SC has said that no doubt under S 105 the standard of proof is not that of beyond reasonable doubt but of preponderance of probability.
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John: There is another category; the one based on subjective and objective facts. Section 82 is the act of child of 7 years of age. This is based on objective fact.

John: Likewise Section 77 says an act of the Judge when acting judicially cannot be an offence... If I were to look at Exception 2 of Section 375 the foundational basis of that is the factum of marriage.

John: Once there is a valid marriage, the Exception does not need to pleaded in any way. Therefore as it stands today, once a marriage is established no prosecution can be authorised.
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John: I would like to take your lordships through the legislative history of the S 375 and the exception.
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John takes the Court through the original draft of the Section and the changes brought since then.
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John shares the original Section 375 as contained in 1837 draft of the Indian Penal Code.
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John: There was no age limit in the draft.

John: The Exception was carved out in order to favour the conjugal rights of the husband and applied only to law on rape.
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John now takes the Court through the first report of Indian Law Commissioner.
The report is from 1844.
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John now takes the Court through the penal code of 1860 which was adopted. She reads Section 375 from the 1860 code.
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John: At first blush it appears that the provisions that Independent India adopted were quite similar to this but with some changes.

John: The footnote at the bottom explains what 'consent' and 'without consent' means. So as per Macaulay 375 against her will means when she is in possession senses. There was a difference made out in the original document.

John: I repeat, Macaulay's original draft of 30s were to protect the conjugal rights. There was intervention which asked for protection of children's rights and therefore the age limit was put in.

John now quotes the Verma Committee report on the issue of marital rape and Hale doctrine.
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J Shankar asks for clarification on John's submissions.
John: The note appended to the Macaulay draft talks about the conjugal rights of man. It does not talk about rights of woman and that comes from the Hale doctrine.
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John now shares a table on how the age factor has developed in the Exception to 375.
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John now talks about how the Colonial power dealt with the issue.
John: The issue of UK common law and how they understand the issue may have some bearing on our understanding as well.

J Shakdher: This common law principle took further the doctrine of Coverture. The woman was almost treated as if she was incapacitated from giving consent.
John: Either she was incapable or it did not matter. The woman was treated as chattel and husband wast he dominant partner.

John: The first evidence of acceptance of Hale's principles comes in Archbold's pleadings.

John: Over the years, the common law positions have been watered down through judicial pronouncements. In 1976, the UK parliament amended the sexual offences Act.

John: In the 1976 Act. The phrase "unalwful sexual intercourse" was interpreted by the courts subsequently.

John refers to R v R and says that the House of Lords interpreted the provision on the touchstone of Hale's theory that upon marriage that wife gives her body to her husband after marriage.

John continues reading the R v R case.

John: It goes to the House of Lords.
John reads the House of Lords comments on the R v R case.

John: This is a case in which the wife claimed that there was forceful sexual intercourse and she suffered injuries and this is in that context.
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"It was held that the having sex with any woman without her consent is unjustifiable" John read.
"It is not creation of new offence but removal of common law fiction," she adds.
John: This was the view of House of Lords.

John: The parliament then removed the word unlawful to bring it in line with the view of House of Lords.
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John: The colonial power took it to its logical conclusion and held that this doctrine had no place in modern times. This is how UK dealt with the issue. Given this background, I will not come to our law and Section 375 and the Exception and answer the questions of the Court.

John: Before 375 and its exception your lordships should come to Section 2(n) of the CrPC. It defines what is the offence.

John nows takes the Court through Section 33 of the IPC. It defines "Act" and "Omission".
The Section can be read here.
indiankanoon.org/doc/1235517/

John now refers to Section 2(wa) of CrPC and asks the Court to read it with Section 44 of IPC which defines "injury".

"If I could correlate these sections, I can say that any act or omission punishable by law which causes any loss or injury which has been defined as harm caused to a person in body, mind, reputation or property then the offence is complete," John.

John: Keeping this in mind, let us come to 375. I will read it backwards.

John reads the Exception.
"Sexual intercourse or sexual acts by a man is not rape."
John: Therefore it seeks to do two things, it places marriage at a premium. By virtue of marriage, a sexual act by a man on his wife is not rape.

John: Then what is rape. It has been defined in 375.
She reads the Section.
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John: It I was to deconstruct this section then definition of rape has two separate components. One the descriptive act given in a-d. But the descriptive act on their own will not be rape. They must be accompanied by circumstances given from first to seventhly.

John: So if a man commits any of these acts, it will not be rape if the conditions in first and secondly are satisfied. What is being penalised is acts committed alogn with description from firstly to seventhly.

John: Central to 375, to the sexual act to become an offence is the issue of consent.

John: Sexual acts with consent are permissible. That is not an offence. This is perhaps the only section in IPC where a woman's consent is central to making an act an offence.

John: Section 497, which the SC struck down in Joseph Shine talked of husband's consent. It is necessary to look at 375 from the point of view of the woman.

John: When we read E 2 in the manner in which is has been framed that Sexual intercourse with wife is not rape, we are in effect saying that second part of 375 where the woman's consent is central will be given a go by.

John: That is the meaning of this exception.

John: Please read Exception 1 carefully. What does this mean? If a woman goes to gynecologist, he has to do some things but even he is not permitted to do act a and b. So when we look the exception, we should not allow an absurdity to prevail.

John: Implicit in E 1 is consent of patient who is a woman. Otherwise, it would lead to very very serious consequences. There may be situations when she is unconcious then the doctor can do it without her consent. But that would be an act done in good faith.

John: It is not anyone's case. Certainly, it would not have been the intent of parlliament that when a woman goes for cataract operation and a procedure is done on her vagina.

John: So when the two exceptions are read together. When the wife and husband are together, it is consensual. All the descriptive elements of 375 may be satisfied. The problem would arise only and only with the second part of 375.

John: Underlying in Exception 2, the consent is also central.
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John: Reading the exception without part 2 would lead to complete absurdity.
J Shakdher: Before decriminalisation of 377 wasn't there a misalignment in 375 and 377. It was ironic that it continued and no one filed a complaint.

John: What was considered the 'carnal intercourse against the order of nature' was anal sex. But even that interpretation is not possible because anus is part of the amended section.

John: It continues even today and that is complete non-application of mind. I am not talking about homsexual relations but hetersexual relations. What is invoked against the husband is 377.

J Shakdher: Apart from the fact that anal sex is part of sexual act and therefore if there is consent then there is no rape but in 377, prior to the SC judgment, that anommaly remained and could he then say that there was consent?

John: It no longer attracts 377 and is open for any man to plead that it is consensual.

Bench: Okay, we will continue tomorrow at 3pm.
Hearing ends.
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