#DelhiHighCourt will continue hearing arguments in a batch of petition demanding criminalisation of #MaritalRape 
On Friday, Senior Advocate and Amicus Curiae, Rebecca John had argued that expectation of sex in a marriage cannot result in forceful sexual relations.
Read full report here:
barandbench.com/news/litigatio…
Read full report here:
barandbench.com/news/litigatio…
A bench of Justices Rajiv Shakdher and C Hari Shankar will hear the arguments at 3pm.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
Hearing starts.
SG Tushar Mehta appears on screen.
SG: Your Lordships are dealing with matter of 2015. We came to know two weeks back about the matter. We are in consultation. Not only a statutory provision is being looked at. There are several consideration which weigh with the government.
SG: It would not be possible for Government to respond immediately especially when no danger is being cause to anyone immediately therefore I would request more time.
J Shakdher: This request was made ten days ago as well. At that time I had indicated that this process is on...
J Shakdher: This request was made ten days ago as well. At that time I had indicated that this process is on...
... and we will hear you after amicus.
J Shakdher: This is not perhaps going to end here. As far as we are concerned, we would be more than happy if you are agreeable with the petitioner or not. The government may have its own approach but for the Court to keep it hanging...
J Shakdher: This is not perhaps going to end here. As far as we are concerned, we would be more than happy if you are agreeable with the petitioner or not. The government may have its own approach but for the Court to keep it hanging...
... loses its meaning.
J Shakdher: I am only saying that for some people, every day matters. Some say this abuse is happening. It can't be our answer that this has been there for hundreds of years what is the emergency. We will give you one week.
J Shakdher: I am only saying that for some people, every day matters. Some say this abuse is happening. It can't be our answer that this has been there for hundreds of years what is the emergency. We will give you one week.
SG: It is more the reason for Centre to formulate its submissions. We have heard the submission of petitioners and amicus... we will have to consider it in holistic manner.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
SG: Your lordships are asking whether we are in favour or not? To arrive at a conclusive answer to question posed by petitioner. We need a consultative process.
J Shakdher: We understand that... In a matter like this, a lot of people may not agree with even what we say.
J Shakdher: We understand that... In a matter like this, a lot of people may not agree with even what we say.
SG: I would be doing injustice to people of India if I make my submission half-hearted.
J Shakdher: We will give you one week, but beyond that it will be difficult for us. Ten days have already gone since your last mentioning.
#DelhiHighCourt #MaritalRape
J Shakdher: We will give you one week, but beyond that it will be difficult for us. Ten days have already gone since your last mentioning.
#DelhiHighCourt #MaritalRape
John: There have been arguments that there are sections of criminal law which can be availed by wives against their husband, so I would lay those section before you.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
498A, 113A, 113B were all brought through the 1983 Act.
John now takes the Court through Criminal Law Amendment Act 2013.
#DelhiHighCourt #MaritalRape
John now takes the Court through Criminal Law Amendment Act 2013.
#DelhiHighCourt #MaritalRape
John now refers to Section 304 IPC, Dowry Death, unnatural offences as well as section 325, 113A, 113B, Dowry Prohibition Act, DV Act.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John also refers to Pre-Conception and Pre-natal diagnostic techniques Act.
John: All these legislation and sections were enacted to address very particular offences. They were not for the offence of Section 375.
#DelhiHighCourt #MaritalRape
John: All these legislation and sections were enacted to address very particular offences. They were not for the offence of Section 375.
#DelhiHighCourt #MaritalRape
John now refers to Chapter 17 of the Indian Penal Code.
John takes the Court through Sections 378 and 383 of the IPC.
John: The punishment is laid out in Section 395. The point I am making is if someone was being prosecuted for dacoity, of course element of robbery are included, of course theft and extortion may also be included.
John: The aggravated offences being dacoity and robbery is distinct but carries the base offence... It will not be presuction under 379 or 383.
The reason I have said this is because 498A include element of cruelty.
The reason I have said this is because 498A include element of cruelty.
John: The cruelty required for 498A is quite different from the sexual acts given in 375. Each of these offences are standalone offences, different in their nuance and ingredient.
John: A person who has committed rape will not be prosecuted under 498A.
John: Under the structure of penal code, all offences are distinct although they may have some overlapping issue. Therefore to argue that woman has remedy under other acts or section is not a tenable argument. They exist but for distinct and other offences.
John: Section 375 is separate and there is no reason why 498A can be used as substitute for 375. It can be used in addition but not as a substitute.
J Hari Shankar: What is the rationale of difference between robbery and dacoity based on the number of people?
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: My limited argument is that there can be base offences and aggravated. Some element may be common. To say a wife has efficacious other remedies is the argument I cannot agree with. They exist in very very different space.
John now refers to 2018 judgment of Gujarat High Court in marital rape case.
John: They were dealing with FIR under 498A by wife. The FIR was also under 376 and 377. The single-judge passed a judgment in a quashing petition.
John: The Court dealt with the Exception in this quashing petition.
John submits that the Court held that even though marital rape is not an offence it is a widespread phenomenon that has existed for centuries and the fact that is illegal in 50 Countries.
John further submits that the Court also took into consideration the Hale logic and the R v Clarke.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John further submits that the Court had held that a large population f women has faced the brunt of non-criminalisation of the practise of marital rape.
She also takes the Court through the types of marital rape as classified by the single-judge of Gujarat High Court.
She also takes the Court through the types of marital rape as classified by the single-judge of Gujarat High Court.
J Shakdher: We have gone through this material independently. It is disturbing that they were both doctors. Was this the case where the husband wanted to have sexual acts in public?
John: The High Court issued notices on petition challenging the constitutional validity of the Exception.
John: In two judgment, there has been a nuanced take by the SC. They have nuanced it further.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: What was said here was that we have to go beyond legal formalism to achieve the true goal of our Constitution. This has further been explained in another judgment.
John now refers to SC judgment in State of Tamil Nadu v National South Indian River Interlinking Agriculturist Association.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: It is my submission that while you examine the constitutionality of E2. You will invoke the twin test therefore I submit that what is stated in Navtej Jauhar and the other case should also be taken into consideration.
John: The SC has said that overemphasis on object bars us from focusing on the object of the law. Therefore these observations should also be taken into consideration.
John now refers to Vishakha judgment to highlight India's international obligations.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: I do not want to labour much except to say that it is now settled principles that India's international obligations should be considered to check the law are in sync with international covenants.
John: Essentially my arguments in the last three-four days are following.
John: I have taken you through the categories of objections... In order to understand how Section 375 and Exception came into being, I took you through the legislative history of the provisions.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: I also took your lordships through common law principle by Hale. I read R v R where the common law principle was recognised as fiction.
John: I had deconstructed 375 in two parts. I said E 1, read in its present form will lead to absurdity and the fact that the consent was implicit there. My argument on E 2 is that sexual intercourse is not rape unless followed by the Second part of 375.
John: It was my submission that the Section created a legal fiction. As we are now required to see by Navtej Jauhar we have to see its effect on wife's bodily integrity and her right to say no.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: I argued that as against marital expectations, the wife had the right to sexual decisional autonomy therefore it is the right of the woman which must be upheld.
John: A wife's right to bodily integrity will stand violated in case of forced sexual intercourse. I also took the Court through 497 and its commonality with 375.
John: I took the Court through Joseph Shine that said that a man's absolute right over his wife is unconstitutional.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: Today i argued that other provisions that provide for crime against husband are insufficient to deal with offence of 375.
John: I have also argued that if the E 2 were to be deleted then it would not create a new offence but only remove immunity for a particular class of people. On this, I am supported by Independent Though and R v R.
John: It is my submission therefore that retention of E 2 will not be constitutional.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
John: Whatever be the outcome, I do believe that these proceedings are not adversarial and the people who have asked me to recuse because I have an opinion on the matter, ultimately the challenge has to be tested on anvil of constitutionality.
J Shakdher: Who asked you to recuse?
John: I have received a lot of hate over the last few days.
J Shankar: Every intelligent person has a view on everything. By that logic everyone should recuse themselves from everything.
John: I have received a lot of hate over the last few days.
J Shankar: Every intelligent person has a view on everything. By that logic everyone should recuse themselves from everything.
Court asks her about her submission on sentencing.
John: It is there in the written submissions.
John: It is there in the written submissions.
John: What I am saying on sentencing is that after every incident, the State's response is to increase sentencing. All we seem to be doing is putting people into jail for a very long time. We must have a sentencing policy. We must have a sentencing board.
John: I have given a link to UK model. It is my belief that if there is a commission, model that discretion must be given to the court.
John: In the end, it is the impossibility of proving a case when you have sentences as high as this. This does not help the victim and therefore this is something that needs to be considered.
Bench: Thanks Ms John for your arguments.
J Shakdher: Mr Kapoor would you like to say briefly what you want to say?
Kapoor: I will need at least 40-50 minutes.
#DelhiHighCourt #MaritalRape
Kapoor: I will need at least 40-50 minutes.
#DelhiHighCourt #MaritalRape
J Shakdher: We will give you half an hour... The material is known to everyone.
Kapoor: I will complete in half an hour.
J Shakdher: After that we will come to counsel for petitioners.
#DelhiHighCourt #MaritalRape
Kapoor: I will complete in half an hour.
J Shakdher: After that we will come to counsel for petitioners.
#DelhiHighCourt #MaritalRape
J Shakdher: After that we will ask the Central government.
Nandita Rao (for State of Delhi) says she does not have any additional submissions.
#DelhiHighCourt #MaritalRape
Nandita Rao (for State of Delhi) says she does not have any additional submissions.
#DelhiHighCourt #MaritalRape
Rao: I do not think this is as much the issue of privacy as Article 14. I do not know how those judgment of privacy are being relied upon by the complainant.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
Rao: I was limited to pointing out that everyone agrees that No is No. The question is is there a violation of ARticle 14. This is my only submission.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
Ritwik Bisari for Men Welfare Trust says he would like to make few submissions as well.
Court says Raj Kapoor is dealing with the same aspect.
#DelhiHighCourt #MaritalRape
Court says Raj Kapoor is dealing with the same aspect.
#DelhiHighCourt #MaritalRape
Bisaria requests for 15 minutes.
Bench: This is more of legal conundrum so we want people trained on the aspect to make submissions.
Bench: This is more of legal conundrum so we want people trained on the aspect to make submissions.
Advocate Biswajit Das: Article 13(2). While the court can trample someone's fundamental right. Not even a single judgment except Independent Thought has gone onto that aspect.
Bench: Are we to understand the Independent Thought is flawed?
Das: I am saying to the extent of it saying we have not created offence and then relying on Regina v R.
Das: I am saying to the extent of it saying we have not created offence and then relying on Regina v R.
Bench: This is not the forum to argue that.
Das: Please allow me to send 2 pages.
Bench: No, we will not allow that.
Das: Please allow me to send 2 pages.
Bench: No, we will not allow that.
Advocate J Sai Deepak says he has moved an intervention application for Madhu Kishwar.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
Bench: We have great respect for you but we didn't allow other and we can't allow you. Please give your suggestions to Mr Kapoor.
Deepak: There is a greater propensity that has come on the side of petitioner. There is not a balance of representation.
Bench: When we are running the Court, it cannot be like because we like Deepak, it can't be that when X comes I say yes and Y comes I say no. You are not managing the Court. You should have come earlier.
J Shakdher: Please give your suggestions to Mr Kapoor. This is not the last forum.
#DelhiHighCourt #MaritalRape
#DelhiHighCourt #MaritalRape
J Shakdher: Don't embarass me like this. You can't swing this around us.
Deepak: The Court is designed or equipped to handle the matter like this.
Deepak: The Court is designed or equipped to handle the matter like this.
Deepak: There are subject matter experts who are merely asking for 10 minute window.
J Shakdher: You are not running the Court. This matter has been going on for quite some time. I am not sure why you didn't intervene then.
#DelhiHighCourt #MaritalRape
J Shakdher: You are not running the Court. This matter has been going on for quite some time. I am not sure why you didn't intervene then.
#DelhiHighCourt #MaritalRape
J Shakdher: Managing the Court is tough and I have requested you to accept it.
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