Thread by @lawbarandbench

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

On Friday, advocate @jsaideepak had argued that there are limitations on Court's powers of judicial review and once a legislation is promulgated, there is an assumption of constitutionality about it.
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A bench of Justices Rajiv Shakdher and C Hari Shankar will hear the matter at 3pm.
#DelhiHighCourt #MaritalRape

Hearing starts.
Advocate Karuna Nundy starts her rebuttal submissions for the petitioners.
#DelhiHighCourt #MaritalRape

J Hari Shankar: There are two aspects. Now that you are in rejoinder, I want you to clarify on two points. One is whether if it is struck down the Court would be creating a new offence. I will come to second question later. #DelhiHighCourt #MaritalRape

J Shankar: If you look at Section 40 of IPC. It defines offence. The word offence denotes a thing made punishable by court. That is the definition of offence. If we strike down E 2. This act of a man having sex with his wife without her willingness is not punishable...

... by striking it down, we make is punishable. How is that not creation of offence.
J Shakar: Second question is with Section 482CrPC.
#DelhiHighCourt #MaritalRape

J Shankar: According to Lalita Kumari as soon as there is offence, registration of FIR is mandatory. There is no offence today in the meaning of 375 and 376. Because he has admitted he is her husband.

J Shankar: If it is struck down, tomorrow if a same complaint is filed husband has no remedy to 482 or Article 226. So the act which is as of today not a crime then again the question is are we not creating an offence. So the question is about Section 40 IPC and Section 482 CrPC.

J Shankar: The second question is can a court strike down a provision as unconstitutional on the ground that it violates fundamental rights if by doing so it is creating an offence.
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J Shankar: I am asking you this specifically in context of a 226 Court. Because this diverges from Independent Though judgment. SC has said that we cannot create an offence and they clarified that we are not creating an offence.
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J Shankar: So I request you submission on both these aspects. You and Mr Gonsalves both.
Nundy: Yes, this is part of our note.
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Nundy: We have also attempted to other questions falling from your lordships.
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Nundy: I also wanted my lords to have hard copy. I have someone waiting outside Justice Shakdher's house.
Nundy starts her submissions.
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Nundy: Our arguments are divided into following section. First, our constitution is transformative and requires us to travel to the destination of constitutional morality.
@karunanundy

Nundy: Second is what is the test that is to be applied to the SC judgment in Independent Though. Third we will address the marital rape argument and the fact that is pre-independence which has no application of mind.

Nundy: We will go into detail on the anvil of Article 14 and also as fell from J Hari Shankar, it is so far being analysed from the view of victim and we will analyse it from the view of the perpetrator and the Act.

Nundy: We will address the issue of punishment. As that does not serve either the victim or the perpetrator. The Exception is entirely independent of that concern.
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@karunanundy

Nundy: We will also argue on the aspect of Article 21, 15(1) and 15(3).
#DelhiHighCourt #MaritalRape
@karunanundy

Nundy: We will also address Article 19(1)(a). We will then come to the statutory interpretation and aggravated rape. We will then come to the Men v Patriarchy aspect.
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@karunanundy

Nundy: We have also addressed the concern falling from J Hari Shankar. The one one other offences available. It is our submission that fair labelling of the offence is required in this case.
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@karunanundy

Nundy now refers to Sabrimala judgment.
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@karunanundy

Nundy: With the constitution in our hands, women have gained unversal suffrange, right to work, right to worship and right against divorce by utterance of three words.
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Nundy: The Maya Angelou said once you know better you should do better.
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@karunanundy

Nundy: The consequences to a specifically labelled offence is that it deters people.
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Nundy now cites the Sushma v Commissioner of Police judgment.
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@karunanundy

The Judge in this case has issues several guidelines remarking that as people come across more and more LTBTQ+ people, they would get used to them.
#DelhiHighCourt #MaritalRape

Nundy: Until marital rape becomes an explicit offence, it will remain condoned.
#DelhiHighCourt #MaritalRape
@karunanundy

Nundy now refers to SC judgment in Independent Though to argue that it is binding.
Nundy: The judgment is binding authority.
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Nundy now refers to Nevada Properties matter.
#DelhiHighCourt #MaritalRape

J Shakdher: The Court applied the doctrine in Air India judgment. The invergent test.

J Shankar: How do you apply it in Independent Thought?
Nundy: I will come to that.

Nundy refers to Independent Thought specifically the reference there to the bodily integrity of the child.
#DelhiHighCourt #MaritalRape

Nundy: A woman cannot be treated as a commodity, having no rights to say no. If we reverse this proposition, according to us, the concerned paragraph would be rendered otiose.

Nundy: If we reverse, it would come to this. It is quite clear that a rapist does not remain rapist and marriage does convert him to non rapist.

Nundy: A rape that actually occurs can legislative be wished away and denied as non-existent. This is the heart of Independent Though and hear to of our case.

Nundy now refers to paragraph 77 of the Independent Though judgment.
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"E 2 to Section 375 of the IPC creates an artificial distinction between a married girl child and unmarried child. Thereby does away with consent for sexual intercourse," Nundy reads.
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Nundy: Reversing this would mean it does not create a distinction and thereby does away with consent.

Nundy now refers to paragraph 82 of the same judgment.

Nundy is referring to this part.

J Shakdher refers to use of the word "own" in reference to wife.
J Shakdher: The point you are making by applying the invergent test is that there can be multiple angles to a judgment.

J Shakdher: So your submission is that despite that observations, there are parts of the judgment that you take away, the entire edifice of Independent Thought would collapse and therefore those are the aspects that are to be taken into account.

J Shakdher: They have raised the age from 15 to 18 therefore if she was your wife earlier then even though she was child, the protection applied.

Nundy: They also said that the way do it is by taking away the fiction. This also allies in R v R. A fiction is being taken away and the clause that already exist and that does not mean a new clause is being taken in.

J Shankar: What fiction is being taken away?
Nundy: The fiction of consent.
J Shankar: Are you saying that because E 2 proceeds on consent and we are taking away that fiction?

J Shankar: I am still at odds with the idea that E 2 is based on fiction of consent. Prima facie it is based on intelligible differentia.

J Shankar: As I see it, it is very simple. Let's assume that there is girl Jill and the guy is jack.

J Shankar; If Jack has sex with Jill, if he is not married he is stranger and we will treat it as rape. If he is married, legislature says we will not treat it as rape.

J Shankar: This whole argument that it is based on fiction of consent, I don't know how much it is a real understand of the basis of the Exception.
Nundy: That is the second limb of our argument.
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J Shankar: It is not to be tested whether Section 375 has intelligible differentia to the object behind rape law. You have to see what is the object behind Exception 2, not the object behind main Section 375.
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Nundy: We will address those issues.
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She continues with Independent Thought and reverses the argument in para 82.
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Nundy now refers to Justice Deepak Gupta's concurring judgment in the same case.
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This is the portion being cited.

She continues.

Nundy: My lords note the last line. "Exception 2 to Section 375 of the IPC is therefore discriminatory and violative of Article 14." I will reverse it now.

Nundy: The provision is not discriminatory. Therefore, if the husband beats the girl child, he may not be charged with Section 323, 324, 325 and cannot be charged with rape. This leads to a consistent and expected situation where husband can be charged with lesser offence.

Nundy: There is an exception clause giving immunity to husband. The DV act will not apply in such cases and there aren't many offences where husband is specifically liable.

Nundy: Only for the offence of rape, husband should be granted such immunity and in a nutshell E 2 is therefore not discriminatory and not violative of Article 14.

Nundy: This judgment also deals with the creation of new offence.
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Nundy is now reading this portion.

She continues.

Nundy is now reading the SC's reference to Hale's doctrine in Independent Though judgment.
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Nundy: What J Gupta has done is to link fiction of perpetual consent and said that the Court is not creating a new offence but only removing what is unconstitutional.

Nundy: Because of the inversion test, this also refers to the issue before your lords.
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Nundy now reads the paragraph of Independent Though after applying the invergent test.
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J Shakdher: That's one part of your submission? Not creation of new offence. Let's assume it is creation of new offence and I hear speakers before you saying in any event it is manifestly arbitrary. If it fails the test of Artielc 14 and 21, it may be the duty of court to step...

...up and do what is right. The other side argued against it and said Court should not act on it. They said there is differentia which is intelligible. That is the argument that you need to address.

J Shakdher: We were taken through Joseph Shine and Shayara Bano. Assume you need to argue on creation of new offence and even it is then what? Should we say we will not touch it?

J Shakdher: You also address us on the issue of arbitrariness and discriminatory. Focus on these issue but don't repeat. Quickly tell us what your thoughts are on these aspects.
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Nundy: The Centre has filed affidavits and counters as well as written submissions. I just want to know should we address those?

J Shakdher asks Centre to come up with its response on the issue quickly.
J Shakdher: Please convey this. The other side wants to know whether they should argue on your affidavits or not.
#DelhiHighCourt #MaritalRape

J Shankar: Ms Nundy, when you are examining creation of offence. Just check whether the courts have ever said that we will strike down even if it creation of new offence.
J Shakdher: Hari, we may be creating a new precedent.
#DelhiHighCourt #MaritalRape

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