Thread by @lawbarandbench

#DelhiHighCourt will continue hearing arguments in a batch of petitions demanding criminalisation of #MaritalRape

On Monday Senior Advocate and Amicus Curiae, Rebecca John had concluded her arguments.
Read yesterday's development here:
barandbench.com/news/litigatio…

A Division Bench of Justices Rajiv Shakdher and C Hari Shankar will continue the hearing at 3pm.
Senior Advocate Raj Kapoor will start with his rejoinder submissions against the petitions.
#DelhiHighCourt #MaritalRape

Court is waiting for Justice Hari Shankar to join.
#DelhiHighCourt #MaritalRape

Justice Shankar has joined.
Hearing starts.
#DelhiHighCourt #MaritalRape

J Sai Deepak now says he is appearing for Men Welfare Trust and would like some time to make submissions.
Bench: Wait your turn.
#DelhiHighCourt #MaritalRape

Kapoor starts his submissions.
#DelhiHighCourt #MaritalRape

Kapoor: If rape is taken in absolute terms by saying that rape is rape then all the rapists must be punished alike. If E 2 is to be struck down then on that logic Section 376B and 376C should also be struck down.
#DelhiHighCourt #MaritalRape

Kapoor: Parliament was not that unwise that one hand, it exempted the husband under E2 and included him under the definition of Relative under Section 376(2)(f) of IPC.

Kapoor: Law is well settled that no extended meaning can be given tot he words in a statute, nor Courts can delete or add words. Thus no extended meaning can be given to the expression Relative or Trust in Section 376.
#DelhiHighCourt #MaritalRape

Kapoor: It is not correct to argue that sexual act in married relations is individual act and the institution of marriage will not suffer if the E 2 is struck down.
#DelhiHighCourt #MaritalRape

Kapoor now read Supreme Court judgment of Sivasnkaran v Santhimeenal where the Apex Court said that a marriage is more than a union between two individuals.
#DelhiHighCourt #MaritalRape

"Marital rape has potential to destroy the institution of marriage," Kapoor reads.
#DelhiHighCourt #MaritalRape

Kapoor: A number of provisions are available under Hindu Marriage Act. The provisions show that an endeavor has to be made to protect the institution of marriage. It is essential not only for the couple but for entire family which includes the children and parents.

Kapoor: The object of Section 13B(2) read with Section 14 is to save the institution of marriage by preventing hasty dissolution.

Kapoor: The example of sex worker cited is also wrong. There is no emotion relationship there. It cannot be limited to just one event of consent for sexual relationship. There is totally different concept.
#DelhiHighCourt #MaritalRape

Kapoor now reads the SC judgment in Arvind Mohan Sinha v Amulya Kumar Biswas and Ors
#DelhiHighCourt #MaritalRape

Kapoor: Retention of E 2 by parliament on basis of reasonable classification cannot be faulted even if it is taken that there is violation with reference to right granted under Article 21. Even then reasonable classification is permissible to provide varying punishment.

Kappor: Husband can be prosecuted under several other section like 323, 324... 498A, 506, 509 IPC and DV Act, 2005 where cruelty includes physical and sexual abuse.
#DelhiHighCourt #MaritalRape

Kapoor: Sexual relation between husband an wife cannot be labelled as rape and at worst it can be called sexual abused only. This is clear from definition under DV Act 2005.
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Kapoor: Wife cannot compel the parliament to prescribe a particular punishment against husband to satisfy her ego. The only difference between 376 and DV act is the quantum of punishment.
#DelhiHighCourt #MaritalRape

Kapoor: Under Section 32, DV Act the offence is congnisable and non-bailable. Upon the sole testimony of the aggrieved person, the Court can conclude that offence under Section 321(1) has been committed.
#DelhiHighCourt #MaritalRape

Kapoor: Thus retaining of E 2 by Parliament was based on some distinct object and purpose and cannot be called arbitrary or violative of Article 21 or Article 14.

Kapoor: Section 9 of Hindu Marriage Act 1955 relating to restitution of conjugal rights is available to both husband and wife. That shows the importance of conjugal rights in the marital relationship. Denial of sex either spouse amounts to cruelty and is ground for divorce.

Kapoor: In certain offences, though the crime is committed and accused is convicted, he still gets relief under Offenders Act, 1940 or Section 360 CrPC therein also there is classification.
#DelhiHighCourt #MaritalRape

Kapoor: Wherever required, parliament has made a classification based on gravity or intention of offence.
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Kapoor: We the people of India have constituted three organs of government. There is limitation on powers of judicial review.

Kapoor points out that the SC has held in Puttaswamy that there is presumption of constitutionality.

Kapoor: Policy making is entrusted with the state. Doctrine of separation of power requires the court to show deference to legislature.

Kapoor: It cannot be that one organ gives protection to citizens and the other organ takes it away and makes it offence. It is settled law that what cannot done directly can also not be done indirectly.
#DelhiHighCourt #MaritalRape

Kapoor: KS Puttaswamy or Joseph Shine did not create any offence. It only decriminalized some offence.

Kapoor: Even in Independent Though the SC did not create an offence. It merely decriminalised some acts.

Kapoor: In Independent Though the Court only read down the wording of Exception 2 to harmonise it with Sixthly in Section 375.
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Kapoor: Even Independent Though recognised the power of the Parliament.

Kapoor: What is binding in a judgment is the ration of judgment on the point which has been raised and adjudicated upon.
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Kapoor: In Independent Though, SC said that it is refraining from making any observation with regard to the marital rape.
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Kapoor: Judgment of Independent Though cannot be relied upon to strike down E 2.

Kapoor: It was argued that word woman may be substituted in place of Girl Child in Independent Though and may be applied to strike down E 2.

Kapoor: Power of HC under 226 cannot be equated with the power of SC.
#DelhiHighCourt #MaritalRape

Kapoor: Courts can make recommendations to the parliament if some changes are required in law.

Kapoor: It may be substituted here that in this case of adverse possession, it was not that thee was legislative vacuum and therefore the SC did not strike down the clause but left it to the wisdom of parliament.

Kapoor: All these submissions are equally relevant to sustain 376B and 198, 198A and 198B of CrPC.
#DelhiHighCourt #MaritalRape

Kapoor concludes.

Bench says it will continued the arguments on Thursday at 3pm.
Hearing over.
#DelhiHighCourt #MaritalRape