Thread by @lawbarandbench

#DelhiHighCourt will continue hearing arguments in a batch of petitions demanding criminalisation of marital rape.

On Monday, the Court had asked if removing Exception in section 375 would indeed amount to creation of a new offence.
Read yesterday's development here:
barandbench.com/news/litigatio…

A Bench of Justices Rajiv Shakdher and C Hari Shankar will hear the arguments at 3pm.
Advocate @karunanundy will continue with her rebuttal submissions today.
#DelhiHighCourt #MaritalRape

Hearing starts.
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Nundy continues with the Independent Though judgment.
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Nundy reads the portion where the Court had held that it cannot accept the argument that marital rape of a child has the potential to destroy the institution of marriage.
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Nundy now applies the inversion test to the said paragraph.
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J Hari Shankar: Is this the way the inversion test is to be applied? As i understand, it says carefully carve out a legal proposition. Then into that proposition you add the phrase of inversion. You can't inverse everything.
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J Shankar: That proposition is not to be taken from the judgment. That is what Nevada judgment says.
Nundy: We have done it both ways.
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@karunanundy

Nundy continues.
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Nundy: Our proposition is that the view that criminalising marital rape would destroy the institution is unacceptable since marriage is not institutional but personal.
She now reverses it.
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Nundy: I will also be taking you through Article 14 and rape law legislation.
J Shankar: In Independent Though judgment para 108 and 109, it says we make it clear that we have not at all dealt with the larger issues of marital rape of adult women since it was nor raised.

J Shankar: They say no part of the judgment deals with marital rape. Now come to J Deepak Gupta's observation. He says nothing in the judgment shall be taken to be an observation on marital rape.

J Shankar: Are you saying this is a precedent on marital rape by applying inversion. I can understand if these observations were not there, but they have said nothing here is commentary on marital rape of adult women... Are we not doing violence to the SC order?

Nundy: Part of the ratio decidendi is applicable to the Exception 2 of 375.
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J Shakdher asks about happened to the petitions earlier.
Nundy responds that a bench headed by CJ in 2017 had said there was no impediment continuing with the petitions after Independent Thought.
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Nundy continues.
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@karunanundy

Nundy: Independent Thought is binding authority on all these propositions.
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J Shakdher: Do you want to go as far as saying that it is binding? The judges have said that the judgment is not to be read on adult women. Now, it is one thing to say that the principles there can be looked at while examining your contention and it is another thing to say it...

... is completely binding.
J Shakdher: Earlier the exception was to age 15 and now 18. J Gupta has said that it was not creation of new offence. If you are saying that this principle can be adopted here is one thing. Why do we need to spend so much time on it?

Nundy: Children cannot consent. They are also different in terms of the fact that the POCSO Act applies to them... We are saying in that consideration the rules the SC has brought in to interpret any of its decisions must apply.

Nundy: What I am saying that some of the major proposition that Independent Thought uses to read down the exception is binding on this Court.
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Nundy: When the SC says E 2 creates an arbitrary distinction and that removing it will not create an offence, in these circumstances I am going beyond to what others have said. In view of inversion test we are saying that this would be binding.
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J Shakdher: Do you mean, it is binding as to principles that emerge from judgment?
Nundy: Precisely.
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@karunanundy

Nundy: A number of the arguments submitted by the respondents is that legislature has applied its mind. At times, the proposition is made more subtly that the legislature, post Verma committee, have spoken of the fact why they do not want to criminalise marital rape.

Nundy now refers to Navtej Johar case.
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@karunanundy

Nundy now refers to the part of the judgment where SC had that a pre-constitution law is made by foreign legislature and no presumption of constitutionality attaches to that law.
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"All that the Court has to see is whether the constitutional provisions have been transgressed and if so the death knell of the challenged provision must follow," Nundy quotes.
She says she has placed parliamentary debates on record.

Nundy: The debates cannot be taken into account for guiding your lordships on deciding constitutionality of the provision which is pre-independence. When it is unconstitutional, you should not send it back to legislature as has been held in numerous judgments.

Nundy (referring to Shayara Bano): The SC had to decide the issue and did not send it back.
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Nundy: Now come to anvil of Article 14 on which marital rape exception must be tested.
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Nundy: We have heard a lot about intelligible differentia but that is not enough. Article 14 requires a lot of things. There must be differentia and it must have rationale nexus with the object that is sought to be achieved.

Nundy: These test apply with much rigour o pre-independence laws.
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Nundy: With regard to manifest arbitrariness, the mere existence of some logic and as long as there is some logic that the legislature may have had is not sufficient if the determining principle is not in consonance or the rationale that has outlived its purpose.

Nundy now refers to Joseph Shine judgment.
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@karunanundy

Nundy refers to the part of judgment where court had termed it to be paternalistic notion to treat a women like a chattel and that the law had outlived its purpose.
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@karunanundy

Nundy continues with the Joseph Shine judgment.

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"Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values," she reads.
Nundy now applies the inversion test to this portion.
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@karunanundy

Nundy: Having though very hard about this, one of our strength is loyalty to our family. It is our submission that the institution will be not desecrated by criminalisation. To retain a law that condones forced sexual intercourse in fact does more wrong.

Nundy: The law should give recourse to the whole set of offences that are committed. #DelhiHighCourt #MaritalRape

Nund: The respondents and intervenors have tried to argue that somehow institution of marriage is being protected by not criminsalising marital rape. But no one has said how?
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Nundy again refers to the Joseph Shine judgment.
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Nundy: The marital rape exception is archaic and has no place in a just constitutional and criminal order therefore it should be struck down is manifestly arbitrary.
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Nundy refers to J Shankar's questions about intelligible differentia between married and unmarried relationships and its appreciation by several law.
Nundy: Those laws meet the anvil of article 14.
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Nundy: The issue before this Court whether that differentia has any rationale nexus to the object sought to be achieved by the E2.
Nundy: I will start here with the object and take a fresh look.
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Nundy: The object must be constitutional. As has fallen from J Shankar yesterday, Section 40 speaks of offence and what is criminalised is the Act. We will see if there is any intelligible differentia there.
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Nundy now refers to Macaulay's notes in 1838 copy of the Indian Penal Code.
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Nundy: Macaulay said the exception in favour of conjugal rights of husband belong wholly to law of rape and not any other part of the code.
Nundy: If we take this to the object, can the object is said to have changed. First, I will come to post-constitutional object of rape law.

Nundy refers to the Criminal Law Amendment act 1983 and Criminal Law Amendment Act 2013.
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Nundy: What has been done here is that they have expanded the ambit of rape.
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Nundy now takes the Court through the amended Section 375.

Nundy: They expand what rape is due to the way in which the act is to be seen by the criminal law because of absence of consent.
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Nundy: As Ms John pointed out, there are two parts to 375. First is Act and the thing that makes it a crime is the lack of will, consent, capacity and everything from firstly to seventhly.
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Nundy: The reason I am going through it is because the object here was to expand the act which is non-consensual... In failing to get rid of the marital rape Exception they seem to be implying that if a husband penetrates or makes anyone else do it, it is a conjugal right.

Nundy: How is this furthering the love? Our submission is that it is not.
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Nundy: It is our submission that this object itself is unconstitutional and therefore the E 2 cannot remain on statute books.
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Nundy: We should not look at the conjugal rights. The Hindu Marriage Act and Special Marriage Act are both post-independence. Mind has been applied in these provisions.
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Nundy: Conjugal rights end where bodily integrity begins.
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Nundy: Even the Court cannot direct a couple to have sexual intercourse. It is not a conjugal right. If any party refuses to cohabit, then it is only enforceable by attachment of property. A spouse can claim divorce on grounds of cruelty.

Nundy: Under Section 9, HMA you cannot order or condone forceful sexual intercourse.
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Nundy: The AP High Court has said that sexual autonomy is what distinguishes humans from animals. It is of primary importance.
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The judgment being referred is T Sareetha v T Venkata Subbaiah
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@karunanundy

Nundy: The challenge to constitutionality of Section 9 of HMA and Section 22 of Special Marriage Act is pending before the SC.
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Nundy: The conjugal right begins and ends at cohabitation, rest is expectation. A denial of this expectation is a perfectly fair ground for divorce... There is an expectation and an in-principle agreement, it may even be an agreement to agree. But it is not saying that when...

... you are entering into a marriage. No wife is saying that when I am ill or exhausted or menstruating that I hereby and forever consent to sexual intercourse.
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Nundy: And that if you have intercourse with me, that we will something else, a lesser offence or not called a rape. That it will be akin to slapping or pinching of the posterior.
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Nundy: By virtue of the E 2, a husband can impose his right without going to court of law. They can do something illegally which they cannot do legally.
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Nundy: It would be saying like a wife who believes that she has a right to maintenance is permitted to sell her husband's property without his consent.
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J Shankar; From your understanding the E 2 gives right to husband to have sex with his wife without any effect or that it coerces or compels her to have sex. Does E 2 say that?

J Shankar: Is it your understand that it compels her to have sex with her husband without consent. If that were the case then obviously it is in the teeth of every fundamental right. If that is the case then I have no doubt that the provision has to go.

J Shankar: We need to know what the prosecution says. If it says X then we have to see if it is unconstitutional. You say because of X something might happen that she has to have sex with his husband or that she cannot prosecute him for rape.

J Shankar: That is why I asked you yesterday about precedents. Prima facie, I cannot see how we are not creating a new offence by striking down E 2. If we are then entire parameter of discussion changes.

J Shankar: Prima facie E 2 does not say that. If a woman is to say because I can't prosecute for rape hence I am compelled to have sex with my husband then that is not the ground to strike down.

J Shakdher: This is like going back and forth. The concerns of J Shankar is there. He has articulated those. We can go on and on. We want to hear what the government has to say.

J Shakdher: If this is only a prima facie view, we have to discuss it. I don't want to say what my prima facie view is. I think government has to say a lot.

J Shakdher: I will request you to finish it tomorrow. Beyond a point you can't expand it. At some stage we have to decide whoever is right or wrong. In matters like these, you cannot persuade the other side.

Nundy: There will be discomfort and there have been questions from the bench that have made us work harder.
J Shakdher: If you don't conclude we will keep hearing you. We have looked at all these judgments again and again.
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J Shakdher: We have only so much time available to us. Don't repeat yourself or take us through judgment already read.
Nundy: We have 40 years of struggle with us. We will attempt to persuade both of you.
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J Shakdher: We have not closed that door. Just don't repeat yourself. You must understand that finding this kind of time is difficult. We need to allocate time for this.
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J Shakdher: How much time you will need tomorrow?
Nundy: About an hour.
J Shakdher: We will start at 3 tomorrow.
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J Shakdher asks if government is ready.
ASG Chetan Sharma appears.
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J Shakdher: Are you relying on affidavit.
ASG: We will be relooking at the affidavit. It is quite old.
J Shakdher: There are only two ways to close. One is legislative and other is judicial. You need to make up your mind.

ASG requests for a week's time.
J Shakdher asks Nundy to deal with Centre's position as recorded in the affidavit and written submissions.

J Shakdher: In a matter like this we will conclude one way or the other.
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Bench: We will continue tomorrow at 3pm.
Hearing over.
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