Thread by @LawBeatInd

Delhi High Court is hearing Adv @karunanundy on the marital rape exception case.

Nundy: Until marital rape becomes an offence it will remain condoned. It is about the woman's right to say "no".

Nundy: The normative force of this judgment will go a long way in helping reach the long-cherished ideal of equal dignity for all.

#maritalrape @karunanundy

@karunanundy: Marriage is not and cannot be a license to engage in forcible sexual intercourse with a woman.

#maritalrape

@karunanundy refers to the following judgment:

#maritalrape

@karunanundy: The proposition is that a woman cannot be treated as a commodity having no right to say "No".

@karunanundy: If we reverse this proposition, this is what we arrive at - the heart of Independent Thought: A rape cannot legislatively be wished away.

Reading out portions of a judgment, @karunanundy emphasizes that "Exception 2 to S.375 IPC creates an artificial distinction between a married girl child and unmarried girl child with no real rationale..."

@karunanundy says that it is constitutionally recognized that a married woman or a married girl cannot be treated as subordinate to her husband or at his beck and call or as his property.

Court: The point you are making is that there can be different ratios to a judgment. Your submission is that despite that observation there are parts of the judgment, which if taken away, the entire edifice of Independent will collapse.

@karunanundy agrees.

@karunanundy: There is a fiction of consent that as soon as parties are married there is automatic consent.

DHC: I am still not convinced on that point, I rather think S.375(2) is based on differentia existing between married and unmarried states.

DHC: The legislature simply says, that for instance, if there are Jack and Jill - if Jack is not married to Jill and has forcible sex then it is rape, if he is, then it is not rape. We are over-emphasizing consent here I feel. It is merely based on qualitative distinction.

DHC: I don't know if you are appreciating the rationale behind the Section.

@karunanundy: We will be addressing that, it is the second leg of my argument.

@karunanundy: We will address that, but coming back to Independent Thought.

Nundy reverses the proposition in Independent Thought says it would mean that women can be treated as subordinate to the husband or at his beck and call or as his property.

@karunanundy argues, basis the judgment, that S.375(2) IPC is discriminatory also because it is the only provision in various penal laws which gives immunity to the husband.

@karunanundy emphasizes on the last line in the cited paragraph.

@karunanundy: There is no cavil of doubt that courts cannot create a new offence, however, no new offence is being created here. The offence already exists in the main section.

@karunanundy relies upon the following judgment.