Delhi High Court to continue hearing plea against marital rape exception in IPC.
@karunanundy for RIT Foundation: The last proposition of Independent Thought that is binding upon the present decision is that marriage is not institutional but personal. 
Justice C Hari Shankar: Ms. Nundy is this your understanding of how the inversion test is applied according to Nevada.
@karunanundy: Yes, My Lords.
J. Shankar: Is this how you apply it? That you pick each sentence and put a not into it??
@karunanundy: Yes, My Lords.
J. Shankar: Is this how you apply it? That you pick each sentence and put a not into it??
J. Shankar: To my understanding you have to first pick out carefully a legal proposition and then see its applicability with the rest of the judgment.
@karunanundy: Actually, we have done it both ways. I am reversing it as is as that is more relatable.
@karunanundy: Actually, we have done it both ways. I am reversing it as is as that is more relatable.
J. Shankar: It's okay, go on.
@karunanundy: This is the proposition we are relying on.
J. Shankar: The SC says in Independent Thought, we have not at all dealt with the marital rape issue of adult women. Since you said each word by SC is important.
@karunanundy: This is the proposition we are relying on.
J. Shankar: The SC says in Independent Thought, we have not at all dealt with the marital rape issue of adult women. Since you said each word by SC is important.
J. Shankar: SC also says that nothing in this judgment shall even be treated as an observation, forget ratio, but in this position are you saying we can use the inversion test to use this judgment as a precedent? Is this not violence to the SC's judgment itself?
@karunanundy: I appreciate what is falling from my Lords, but part of the ratio decidendi of this decision has a bearing on S.375(2) IPC.
The propositions are such that they have a bearing on the Section, she emphasizes.
The propositions are such that they have a bearing on the Section, she emphasizes.
@karunanundy: It is our case that Independent Thought is a binding authority in the present case because if the propositions were inversed the conclusion in Independent Thought could not have been reached.
Much has been said on even obiter being binding but we're not on that.
Much has been said on even obiter being binding but we're not on that.
Justice Shakdher: Do you want to go as far as saying that it is binding here apropos to what Justice Shankar said. If it was completely binding there would be nothing to rule on, because it is not there is something to rule on.
Justice Shakdher: To say that those principles are binding would be one thing but what you're saying is another.
@karunanundy: Infact, the rules the SC has brought in to interpret its decisions must apply.
She relies upon the following judgment to say that even if something is not necessarily the ratio of a judgment it may be binding.
She relies upon the following judgment to say that even if something is not necessarily the ratio of a judgment it may be binding.
@karunanundy: You have the Supreme Court saying something in such explicit terms.
She refers to its comments on artifical distinction between married and unmarried women, and how the exception is discriminatory.
She refers to its comments on artifical distinction between married and unmarried women, and how the exception is discriminatory.
Justice Shakdher: So correct me if I'm wrong, you are saying the principles are binding?
@karunanundy: And the findings.
J. Shakdher: If the findings are binding then nothing remains.
Nundy: I correct myself - the principles.
@karunanundy: And the findings.
J. Shakdher: If the findings are binding then nothing remains.
Nundy: I correct myself - the principles.
@karunanundy cites a judgment to argue on validity of pre-constitutional statutes especially one like IPC.
On the question of separation of powers, and that the marital rape question must be sent back to the Legislature, @karunanundy relies on the case of Saira Bano to press that where fundamental rights are being infringed, the Courts can intervene.
@karunanundy: On the question of Art.14 - intelligible differentia existing between husbands and non-husbands, yes there is intelligible differentia but rationale nexus between the differentia and object to be achieved also has to be considered.
@karunanundy: This is especially where pre-constitutional statutes are concerned. Merely saying there is a logic, some logic, is not sufficient - especially where there is manifest arbitrariness.
@karunanundy relies on parts of Joseph Shine.
@karunanundy: I've thought about it very deeply My Lords, our country and its people have many strengths - one of them being loyalty - and loyalty to family, the divorce rate here is also low.
She argues that forced sexual intercouse does not protect the sanctity of marriage.
She argues that forced sexual intercouse does not protect the sanctity of marriage.
@karunanundy: Those before me have tried to say that it is the institution of marriage that is being preserved by somehow protecting forced sexual intercourse - but nobody has said, why??
#maritalrape
#maritalrape
@karunanundy: Infact so far as protecting the institution of marriage or family goes, the Court has also said that there are constitutional values of equality, liberty and dignity to be protected as well.
@karunanundy: This exception is archaic, is manifestly arbitrary and has no place in the present Constitutional order.
Justice Hari Shankar has been saying repeatedly and correctly so, that there is an intelligible differentia between marriage and non-marriage relations.
Justice Hari Shankar has been saying repeatedly and correctly so, that there is an intelligible differentia between marriage and non-marriage relations.
@karunanundy says that the differentia has been applied all orders of laws but while meeting the anvil of Art. 14, and not arbitrarily.
@karunanundy: Protecting the institution of marriage has nothing to with deciding constitutionality of a provision.
Nundy on section 375 of IPC, says is it a conjugal right of a man to insert his penis into the vagina, urethra or mouth without consent of a woman? Is this the institution of marriage? Is this the love that a marriage beholds? @karunanundy #maritalrape
Hindu Marriage Act, Special Marriage Act pos independence statutes. If protection of conjugal rights is taken to be protection of object (man) then same does not stand test of constitutionality because conjugal rights end where constitutional rights begin: @karunanundy
No wife is saying that when I am ill or fighting with you or menstruating, i allow you to have sex with me. If husband goes ahead, it’ll be cruelty or akin to slapping posterior under section 354 in the rupan deol bajaj case! : @karunanundy #maritalrape
What separates us from the animal kingdom? The right to choose a partner for sex: Nundy #maritalrape
Sexuality is about a right to bodily integrity: Nundy
Justice Harishankar says that Nundy’s submission is that it gives licence to husband to have forcible sex with his wife. That is not what exception 2 says prima facie. #maritarape
Bench tells Nundy that beyond a point the issue cannot be expanded and counsel have gone on and on. #maritalrape
We want to hear the Government now. The government has to realise its stand: Justice Shakdher #maritalrape
The govt has filed its written submissions in January extensively! : Gonsalves #maritalrape
(Vol. It appears that the government intends to file additional submissions)
Hearing adjourned to tomorrow at 3 pm.
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