Thread by @lawbarandbench

#DelhiHighCourt to continue hearing a batch of petitions demanding criminalisation of #MaritalRape
Sr Advocate Rebecca John will continue with her submissions today.

On Wednesday, John had argued on the legislative history of Section 375 and the fact that consent of woman is central to exception in the said section.
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A bench of Justices Rajiv Shakdher and C Hari Shankar will continue hearing the arguments.
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Hearing starts.
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Advocate Vivek Narayan Sharma mentions that he has filed an intervention application on behalf of Purush Aayog.
Bench says no application or intervention can be entertained at this stage.
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Sharma says he is not able to hear the bench.
J Shakdher: Read my lips. NO!
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J Shakdher: How many people are we going to entertain like this? Please make your suggestions to the counsels who have already joined the proceedings... We are not post-box, it is not acceptable.

J Shakdher: This matter has been going on for years, you slept all this while. Now we are near the end.
J Shakdher asks his court master to tell the registry to not accept any applications.
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Rebecca John starts with her submissions.
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John: I want to start by showing the Section as it existed before 1983 when it was changed. In 2013 mammoth amendments were made. In 2018 some amendments were also made but that had more to do with the punitive aspects.
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John shares Section 375 as it existed before 1983.
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John: The criminal law amendment act came in 1983. It brought with it a host of penal provisions including 498A.
She now shares the amendment brought in Section 375 through the 1983 Act.
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The 'thirdly' and 'fifthly' conditions were brought in through this act.
John: These were structural amendments to 375. There were amendments to 376 as well and the custodial nature was brought in for the first time through this act.
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John now shares the objects and reasons of Criminal Law (Amendment) Act, 2013.
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John: The reason I read this is because specific references have been made to the setting up of Verma Commmittee, its report and the fact that the 2013 bill and act took into consideration the Verma committee report.
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John now shares Section 375 as it exists today.
John: There was a change in sixthly. From 16 years, the age now became 18. Seventhly was entirely new. Explanation 1 new, Explanation 2 new and Exception 1 also new.

John: Section 376(2)(cfg) were also new.

John: It was my submission yesterday that if 375 is looked at without the exception, consent is paramount. I took your lordships to E 1 and said if it was given literal meaning there would be problems.
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John: Read E 2 with E 1, I argued that given the two sides of the definition, to say a man having sexual intercourse without consent was not rape, it would lead to absurdity.
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John: I would now address the Court on the issue does marriage brings with it an expectation of conjugal expectation. Does that expectation turns into right on account of marriage?
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J Hari Shankar points that he never said that there is a right to conjugal relations without woman's consent.
John: The expectation of sex or meaningful conjugal relations can be mutual and with consent that is a fair expectation.

John: There can be a unilateral expectation as well and if that is not fulfilled then the spouse has way to civil remedies. But when it comes to coercion and causes harm and injury then that sexual act must become an offence.
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John: What is sought to be brought in the purview of main definition is the act of sex with a wife despite her No. The protection under E 2 is not in nature of exception but an exemption. It is in the nature of immunity and purely fictional.
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John: If the exception goes, all the court is doing is holding the bodily integrity of woman and putting people to notice that this no longer gives you immunity. Henceforth, a refusal or No of your marital partner must be respected.

John: And that is why this needs serious judicial intervention.
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John now elaborates on the consequences that the Exception allows.
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John: Can a Court permits a husband who suffers from a venereal diseases and whose wife comes to know about it and says no. Can the husband still claim exception?
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John: The case mentioned earlier by this court where a woman is gang-raped by husband's friends and husband also had sexual intercourse. Will it not be an absurdity if the friends are charged with the offence but man claims exception?

John: Our research showed that this is not a singular issue but pervasive. It is happening across the Country.
John now shares several news reports on the issue.
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John: The effect of something like this is very very serious offences do not get punishes. Therefore, apart from instances that we have mentioned thus far, we need to look at some of the consequences of giving the marital partner an immunity that has been thus far.

John: If E 2 is allowed to remain then it disregards a wife's consensual rights.

John now shares the SC judgment in Puttaswamy case.
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John: I am saying that the validity of E 2 has to be tested not just with reference to twin test but on the basis of its effect on a woman's freedom. What are its intended and unintended consequences?

John: If its consequence is that a married woman can be subjected to rape then it is an instrument of subjugation.

J Hari Shankar: Can you tell us which freedom is being curtailed by the Exception?
John: The freedom to say no.
J Hari Shankar: Are you saying the Exception prohibits a woman from saying No?

John: The consequnce of the exception is that the man where he is otherwise raping his wife will not be punished for rape only because: a. He is married and b. the second part will not be given effect to.

John: Of course, E 2 is predicated on marriage. Of course, it does not say that you can disregard you wife's wishes. But it does say the sexual violence against wife is not rape.

John now refers to Section 497 of IPC which deals with adultery and was declared unconstitutional by the Supreme Court.
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John: What is common between 375 and 497? One is sexual intercourse. Two there is a marital relationship at play. Three, in the context of sexual intercourse, there is reference to consent. Only, this time consent has to be obtained from husband.

John: Lastly, there is an interesting sentence about rape. It means when the wife has sex outside marriage, obviously it is not rape because her consent is there but her husband's consent is absent and therefore it constitutes an offence.

John: What is common in 375 and 497 is dominance of one partner and subordinate role of other. 497 only allows husband to prosecute. 375 gives him exception. In both the sections, reverse is not true.

John: With this background in mind please allow me to read Joseph Shine.

John now reads the Joseph Shine judgment.
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John continues with Joseph Shine judgment.
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John now refers to The Doctrine of Coverture as dealt by Justice Indu Malhotra in her judgment in the Joseph Shine case.
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John: Some of the takeaways from this beautifully penned judgment are following: though the SC was dealing with 497 but because of interplay between to two section, I read the judgment.

John: Though there are difference but there are commonalities as well.
John: The SC dealt with marriage, modern day marriage, a woman's expectations and said that a man's expectations from marriage may be reflected in antiquated ideas but it was unconstitutional in today's time.

John: It said that the autonomy in married of sexuality is intrinsic to a dignified life.
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John: The judgment of the SC is therefore articulated that a modern marriage is a union between equals... The Exception certainly does not reflected an Indian man, woman and certainly not the Indian marriage.
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John: Your lordships merely will be doing your duty to strike down the provision. You are not acting paternally.
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John: I now move to the point whether the removal of the exception leads to creation of a new offence.
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John: It is my submission that it does not. The offence remain. An offence is an offence as defined in 375. A class of individual who enjoyed immunity from prosecution will now lose it should it is declared unconstitutional. That is not creation of an offence.

John: That is simply lifting the immunity from protection.
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*correction protection should read is prosecution.

John: To my mind, it is nothing but fiction.
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John: This is exactly what has happened wrt to minor girls in Independent Thought.

John: When Independent Thought, in 2017 declared that the E 2 to the extent of age of 15 year was unconstitutional, the Court already diluted the impact. It has already been struck down partially.

John: The Court said that it did not deal with the marital rape because the issue was not pursued before them. But the language clearly indicated that this kind of exception is antithetical to modern day marriage and rights of a modern Indian woman or citizen.

John: The SC already dealt with the issue of creation of offence. Justice Deepak Gupta answered the question and said No.

"One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 IPC, is the Court creating a new offence. There can be no cavil of doubt that the Courts cannot create an offence... However, there can be no manner of doubt that by partly...

...striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Section 3 and 5 of POCSO. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with...

...the Constitution and POCSO," Justice Deepak Gupta had held in Joseph Shine.

John: Therefore should the Court comes to the conclusion that E 2 must go, it is not creating an offence. It is only saying that a class which was enjoying immunity has now lost it. I am supported by Deepak Gupta's argument as well as R v R.
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J Shankar asks John if it is her contention that the main part of 375, after main (d), there are words where she is not his wife, and the Court strikes down the words where she is not his wife, this would lead to creation of offence?

J Shankar: Suppose it was gender neutral and the Exception said two parties are married.
"Would it still have been unconstitutional," J Shankar asks.

John: I will answer both the questions in a nuanced way.

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John submits that she will not deal with existing provisions and if a woman has remedies to other provisions.
"Lastly, will be some of my concerns overall particularly on the penalties. It is my duty to bring the effect of very high sentences," she submits.

J Shakdher tells John to address the Court on 376B and 198.
J Shakdher: Is it your contention that would logically flow or not? The other question is on 511.

J Shakdher: I want clarity if 511 can also be attracted. I want to know whether those will be attracted?
John: Yes.
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Bench: Okay, we will hear it tomorrow at 3pm.
Hearing ends.
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