Thread by @lawbarandbench

#DelhiHighCourt to continue hearing arguments in a batch of petitions demanding criminsalisation of #MaritalRape

Sr Advocate Rebecca John will continue with her submissions today.
Read Thursday's development here:
barandbench.com/news/exception…

A Division Bench of Justices Rajiv Shakdher and C Hari Shankar will hear the arguments.
Hearing to start at 3pm.
#DelhiHighCourt #MaritalRape

Hearing starts.
#DelhiHighCourt #MaritalRape

J Shakdher: Pleas confine, in the rejoinder, only the points that you did not give in the opening.
#DelhiHighCourt #MaritalRape

J Shakdher tells Monika Arora (who appears for Centre) to ask the government to come back on the issue soon.
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Rebecca John starts with her submissions.
#DelhiHighCourt #MaritalRape

John: I will answer the questions that the bench asked me yesterday.
John: The first question was about after that descriptive act of a-d, if the main provision were to say 'after woman' that 'where she is not the wife', would its effect and my argument be the same?

John: My response is reasonably the same. #DelhiHighCourt #MaritalRape

John: Offence itself has nothing to do with who is committing it. Nature of offence does not change because one class is included or not included.

J Hari Shankar: My understanding of offence in criminal law was that an offence involved four ingredients; victim, perpetrator, act and punishment. This understanding came from a constitutional bench judgment.

J Shankar: This is actually one of the reason because of which I still am little odd with the submission that consent is the main feature in Section 375.

J Shankar: As I understand, it is the entire act which constitutes all these for ingredients and if we slightly deviate from this only on the point of consent. And if we look at the four points then there may be an intelligible differentia in a married and unmarried relationship.

John: I am in agreement that all those four ingredients exist. There is no quarrel with that. Section like 376 is gendered in nature. The victim here is a woman and perpetrator is a man. If you were to insert and exclude from the victim and say but if she is a wife...

... my respectful submission is that it would be arbitrary.
John: If that were to be removed, it would remove immunity. It would have nothing to do with the perpetrator... It would not be the creation of a new offence. One of the reason for that is gendered nature of that crime.

John: I repeatedly said that if one part of the Section is not fulfilled then the act would not be complete. It is an amalgamation of both. I am not saying that the section is only predicated on consent. It is an ingredient of that.
#DelhiHighCourt #MaritalRape

J Shankar: Would it be more accurate to say that if the act happens in a particular kind of relationship, this act will not be considered a rape? They are not saying that consent is irrelevant but that when the thing happens within marital sphere, we will not call it rape.

J Shankar: What I believe, is that there is a qualitative difference between equation that exists between married and unmarried parties... Till now I have not got a satisfying answer.

J Shankar: When the parties are married there is an expectation of sexual relations. Therefore there is an intelligible differentia in marital and non-marital relationship.

J Shankar: Then we come to object. Now, an offence of rape is violation of bodily integrity. There is one case where the man has no right then there is another case where he has right which is sanctified by the institution of marriage...

... given that right and the fact that he had sex with his wife when she was not willing. Given this backdrop if legislature feels that we will not equate this act with other scenario. Assuming both acts are condemnable they don't want to equate the two type of act...

...they say we wont' categorise it as rape because there is a right sanctified by law. If the legislature has taken a conscious decision that it will not be treated as rape then as a court examining the vires of this, how are we to say that there is no difference...

what we are doing is we are passing a value judgment. We would be saying you are not right and this is rape... Is that right?

J Shankar: If the legislature decided that when the parties are married we will not call it rape, we won't make it subjet to 10 years of punishment, are we to say that there is no basis for legislature to draw it?

J Shankar: That is why I was a little skeptical to go into consent point... We are obfuscating it by just saying consent, consent, consent. There is a presumption of constitutionality. We cannot deny it.

J Shankar: I am not getting an answer for this from the very first day. Since you are amicus, I am putting this to you. We are not supposed to find ways to quash it.
#DelhiHighCourt #MaritalRape

John: It should not be treated as if I am being impertinent.
John: You said a husband a right to conjugal relations. This whole argument is predicated on that the husband has right to conjugal relations. My submission is that there is no right.

J Shankar: Let's say he has an expectation.
John: Yes. He can have expecations.
J Shankar: Therefore my point. If the legislature felt that in backdrop of this expecation we don't want to equate the two.

John: The expectation cannot then result in forceful sexual relations. They can have a dialogue based on that expectation.

John: If the wife withdraws from sexual relations, the way to resolve is through dialogue. I don't want to trivialise it. It is about a man excercising his dominant right over his wife despite her saying no.

John: It may result in anything. the husband may be right and wife may be unreasonable. But there is no right, there can be an expectation which cannot lead to forceable sex with wife. That is my complete answer.
J Shankar. Alright.

John: Therefore, striking it down does not affect a generic class. The issue of sentencing, I am with your lordships and will be speaking on that. I am agitated by the nature of sentencing that we have in our country.

John: It will not amount to creation of offence. It will only remove the immunity granted to a class of people.
#DelhiHighCourt #MaritalRape

John: Now the second question. Which is even more intense. Your lordships asked what if the section was gender neutral.

John: For my own understand. I am asking myself two questions. Suppose it was gender neutral can the exception survive?
John: this excercise was done in the Criminal law ordinance which was in force for less than a month.
#DelhiHighCourt #MaritalRape

John shares the ordinance.
#DelhiHighCourt #MaritalRape

John points out that the Section had the word 'person' while the Exception has the word man and wife.

John: This was not created into an act and junked. The act that was brought in has the word man.
John: It would have led to a more absurd situation. It would have been a double whammy.

John: If the entire provision was gender neutral then what are we protecting? We are protecting the marriage. Not just the rights of one party.
#DelhiHighCourt #MaritalRape

John now shares the Independent Though judgment.
She refers to the argument raised by the state that the institution of marriage needs to be protected.
#DelhiHighCourt #MaritalRape

John: It said that the view cannot be accepted. Marriage is not institutional but personal.

John: What the SC, on context of reply by Union, said that the institution does not need protection.
John: Apart from this, I would also suggest that gender neutral section would create a false equivalence that, in reality, husband and wife are equal.

John: This would disregard the reality. Several section as well as legislation recognize the gender inequality within a marriage.
#DelhiHighCourt #MaritalRape

John: There is gendered aspect to these provision based on the lived experience of women. I have also shown the law that exists, at least in UK which similar to other jurisdictions.

John now shares the Criminal Justice and Public Order Act, 1994 of UK.

John: The perpetrator even in the so-called neutrality is man, the victim can be a man or woman.
John now takes the Court through 2003 act and the definition of rape therein.

John: This is as neutral as it gets. The perpetrator here is also a man, the victim can be a man or woman.
John: In our research we saw a very interesting formulation in Verma Committee.

John now takes the Court through Verma Committee report and the definition of rape therein.
#DelhiHighCourt #MaritalRape

John says the report also had the word person as victim rather than woman and they deleted the Exception which was accepted by Parliament.

John: In both formulations, the victim can include man but the perpetrator remain a man.
John: I would bring to your notice the fact that there is a reason why 376 is in its orginal form.

John: In the given situation, I believe transgenders are more vulnerable. The present law is framed on experiences of women...

John now refers to 228 IPC, 154, 167, 164, 164A, 309, 327, 357C of CrPC and 146 of Evidence act.
All of these have been amended putting the woman at the centre of provisions keeping in mind the safeguards that must be given when a woman files complaints: John.

John: This basked of measures relates to protection given to women. If we were to make the provision gender neutral then we would have to make other adequate provisions as well. The structure is not just 375 but this entire gamut of provisions.

John: It is not my case that other sexual minorities not be protected. But we have to take into account their situations and not jumble these provisions.

John: Wrt to gender neutrality, there was a challenge before this Court that then went to apex court.

John: The first prayer was to declare gender specific provisions unconstitutional.
John shares the Delhi High Court judgment.

John: The challenge was disallowed and the SC did not take it into consideration either.
#DelhiHighCourt #MaritalRape

John: It is true that 375 seeks to protect the woman like many other legislations. There is a judgment of this court wrt to vires of DV Act.

John now shares the 2008 judgment of Delhi High Court in Aruna Pramod Shah.
#DelhiHighCourt #MaritalRape

John: I am also, at this point making the argument that Article 15(3) states that nothing will prohibit the state from making legislation for protection of women and children. I will also point to the Joseph Shine judgment of SC where the apex court has referred to this.

John: There have several challenges on the ground that these provisions are discriminatory but the SC has every time said that this is protective discrimination.
#DelhiHighCourt #MaritalRape

John: In the light of this, I argue that by not recognizing that inequality exists in a marriage for large majority of women and making the Exception gender neutral or allowing it to stay would dilute the protection given to women.
#DelhiHighCourt #MaritalRape

John: There were two question asked by J Shakdher. What would be the fate of 376B and 198? The Verma committee had recommended deletion of Exception.

John: This was not acceded to in the 2013 Act. It is my understanding that as some kind of compromise that 376B was introduced making it rape when sexual intercourse takes places between husband and wife when they are living separately.
#DelhiHighCourt #MaritalRape

John: What is interesting is that even when the wife is living separately, parliament though it necessary to insert the word consent.

John: In what situation do we think these provisions would be invoked. Not in normal circumstances. In a sense, parliament realized that they may not even be living together but some element may have broked down. Would we not be sending the right message by asking the parties...

... to be respectful to each other's sexual freedom.
John: To that extent, this was a kind of compromised provision. There was demand for removal but parliament did not thinkg it fit to remove but brought in 376B.

John: If you read 198 CrPC it no court shall take cognisance of offence under 376B without prima facie satisfaction of facts.

John: Is this coming from a gendered resistance to removing the exception? Or does it have any logical basis because in no other provision the complainant or victim has to meet this level of satisfaction.

John: Notwithstand that, if the exception were to go then 376B or 198b cannot survive.

John again takes the Court through Joseph Shine judgment of Supreme Court.
#DelhiHighCourt #MaritalRape

John: So if E 2 was to go then there is no place for 376B and certainly 198b of CrPC which is based on 376 as procedural requirement.
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John: The next question which was asked was wrt to section 511.
John: If the husband makes physical overtures or attempt on his wife can he be prosecuted for attempted rape?

John: for this we need to understand what is attempt to rape.
J Shakdher: There is enough material on that. What I want a direct answer on is would 511 come into play if the Exception goes
John: Yes.

John: I also aware of... It is not for us to resolve this but this would give rise to some sort of problem.
John now shares the State of MP v Mahendra Alis Golu judgment.
#DelhiHighCourt #MaritalRape

John refers to SC's interpretation about what constitutes an offence.
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John: Some of these facts would no longer constitute attempt.
J Shakdher: So they held him guilty in this case?
John: Yes.
#DelhiHighCourt #MaritalRape

John: Therefore all these provisions can apply. Section 354A, B and C IPC and 370 some others were brought in with criminal law amendment 2013.... There is no exception to marriage in these provisions.

John: So that is now for parliament, in its wisdom, to decide what to retain and what not to retain.
J Shakdher: That is exactly the argument Delhi State.

John: Ms Nandita Rao pointed out that there are other provisions available to wife.
John: I have not seen any of these other provisions being accessed.

John: What remains now is this section on other offences and if there is any interplay between those offences and reason why 375 should not be made available with wife.

Bench: We will have it on Monday then?
J Shakdher: On sentencing while we would like to hear you, I am not sure how much either way we can do.

John: Every time there is an incident, state comes up with solution to increase the sentence and the burden then increases even for victim to prove the guilt... Even if your lordships retain the exception, you can make recommendation on sentence.

John: Across the board, we have exceptionally high sentencing. We do not have a sentencing policy.
J Shakdher: We will hear you. But how much impact our recommendation will have we are not sure.

John refers to Vishakha judgment on sexual harassment.
J Shakdher: That is above my paygrade. We will see, I am not saying no. this was only in lighter vein... The court did a very creative thing.
John: Sometimes creativity is required.

J Shakdher: There is example of pollution as well. When Delhi was reeling... It is not as if Court has not done it. What I understand is we need not go that far, we need to deal with Exception.
#DelhiHighCourt #MaritalRape

Bench: We will continue on Monday at 3pm
Hearing over.
#DelhiHighCourt #MaritalRape