Delhi High Court to continue hearing plea against marital rape exception in IPC. The matter is being heard by a bench of Justices Rajiv Shakdher and C Hari Shankar.
@karunanundy: Conjugal rights end where right to bodily integrity begins for instance you can order cohabitation but you cannot order sex.
The intelligible differentia bears no rationale nexus even with the purported object of protection of conjugal rights.
The intelligible differentia bears no rationale nexus even with the purported object of protection of conjugal rights.
@karunanundy: I will argue that this exception is destructive of the objects of the main Section.
@karunanundy: Let them point out even one sentence where marital rape exception is allowed in the 2013, 2018 amendments.
@karunanundy places reliance on a judgment. 
Nundy says a proviso cannot be used to nullify the objects of the main section.
She argues that the same applies for an exception as well. Exception cannot subsume the main provision to which it is an exception.
Nundy: Object of rape law is that women are not raped. No man can force a woman to have sex with him against her will or consent.
Nundy: The exception essentially says that the husband of a woman can do so.
Nundy relies on Joseph Shine to press that familial structures cannot be regarded as private spaces where constitutional rights are violated.
Nundy relies on another judgment on striking down of a provision which affects a class.
HC: Someone is playing music, while it's interesting to have some music this is not the time or place.
HC: Someone is playing music, while it's interesting to have some music this is not the time or place.
Adv @jsaideepak: My Lords, I need a clarification.
@karunanundy: My Lords, why is he interrupting? My Lords, please, I may not be allowed to be interrupted. I'm in your hands.
Deepak: I merely want to know if this judgment is part of the compilation.
@karunanundy: My Lords, why is he interrupting? My Lords, please, I may not be allowed to be interrupted. I'm in your hands.
Deepak: I merely want to know if this judgment is part of the compilation.
DHC: There is no need to get worked up. Ms. Nundy he just wants to know the citation, Mr. Deepak you could simply note it down (from the screen).
Nundy: It is our submission that the offence of rape is the act of forcible, non-consensual intercourse by a man on a woman - this is separate/independent of the relationship between the perpetrator and victim.
Nundy: The exception takes away the right of a particular class of human beings. It protects the class of husbands of adult wives.
Rape is already an offence, striking down the exception would not create a new offence but merely create a new class of offenders.
Rape is already an offence, striking down the exception would not create a new offence but merely create a new class of offenders.
Someone plays the National Anthem in the background.
@karunanundy: Request the person to kindly mute.
(Mutes)
Nundy: Thank you so much.
@karunanundy: Request the person to kindly mute.
(Mutes)
Nundy: Thank you so much.
@karunanundy: There is a difference between the creation of a new offence which is of positive nature, and the interpretation of constituents of an existing offense - a negative exercise of judicial review.
(Upbeat music plays again)
@karunanundy carries on: The music is coming again.
Justice Shankar: Just remove the person.
Someone adds: This seems to be intentional mischief.
Justice Shakdher: Don't get distracted, Ms. Nundy.
Justice Shankar: Just remove the person.
Someone adds: This seems to be intentional mischief.
Justice Shakdher: Don't get distracted, Ms. Nundy.
Nundy: We may have a situation where a husband is facilitating brutal gang rape on his wife by his friends - the crux is about moral and legal approbation. It's not about punishing the husband but the man.
Nundy: For political reasons the punishment was increased from 7 years to 10 years. Following that the conviction rate has gone down further.
Verma Committee recognizes that marital rape causes the same spectrum of harm as rape.
Verma Committee recognizes that marital rape causes the same spectrum of harm as rape.
Nundy: I want to say two lines each on Art.19(1)(a) and Art.15. Laws have been struck down for being violative of A.19 alone.
This exception takes away the ability of a woman to say a joyful yes.
This exception takes away the ability of a woman to say a joyful yes.
Nundy: It curtails the woman's right to say no and to this extent it is unconstitutional.
This case is about people vs patriarchy not about men vs women.
This case is about people vs patriarchy not about men vs women.
Nundy cites an application by Forum to Engage Men as an instance of men too supporting the cause of marital rape exception being struck down.
Nundy: When A.226 is involved the exercise of jurisdiction is not discretionary. Where fundamental rights are concerned, it is the bounden duty of the Courts to act.
Nundy: Discretion is only involved when it is any purpose other than violation of fundamental rights.
Nundy: The Union of India in its reply has said that factors like poverty need to be taken into account before criminalizing marital rape. So if it happens on a poor married woman, it's not rape? This is the Union of India, this is why we are before the Court.
Nundy: We can't even make out if it's stray comment or what, but it is apparently not a stray comment because they've said this elsewhere also.
Adv Monika Arora: There are written submissions being referred to which have been filed in 2017, additional affidavits have been filed thereafter.
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