Thread by @vixxkigoli

What will happen if Marital Rape Exception (375-Exception) of IPC would struck down ?
🧵 thread 👇 1/N

Note:
* In this thread, I only covers male POV, one of my female friend will soon cover female POV.
* I am not opposing criminalization Spousal sexual violence, especially, non-consensual sex between spouses or those in spouse like relationships.

* I does not contend that husbands/men have a right to impose themselves on their wives/spouses sighting marriage, as be all and end all of, implied consent to every marital privilege including sexual intercourse.

Q: What is MRE (375-E) ?
A: This exception is as follows:
"Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
Explanation: Sex with your own wife is not rape, until and unless she is under is 15-years.

Q: What will happen if MRE struck down ?
A:
* After MRE struck down, every act of sex between husband and wife will be considered as rape, if she lodges complaint.
* No matter if she gave consent during sex or not it will not mater, but complaint will be lodged.

Q: What will happens with husband ?
A:
* If MRE is struck down, husbands who are not separated would be in a worse position than those who are separated from their wives and indulge in non-consensual sexual acts. Such husbands would be subjected to harsher punishment than those

who are booked under Section 376B of the IPC. Husbands, who are not separated from their spouses if found guilty of the offence of rape under Section 376 of the IPC, will be amenable to imprisonment for a term which shall not be less than 10 years but which may extend to

imprisonment for life. Whereas punishment by way of imprisonment provided under Section 376B is minimum of 2 years but may extend to 7 years. Section 376(2)(h) and 376(2)(n) concerning rape committed on a woman who is known to be pregnant or repeated acts of rape committed on

the same woman. These provisions would demonstrate that striking down MRE would lead to harsher consequences for the husband as compared to those husbands who are separated from their spouse. Furthermore, our attention was also drawn to Section 114A of the Evidence Act to

demonstrate the anomaly that would arise vis-a-vis the husbands who remained in marriage and those who are separated from their wives.
* There is no exception clause giving immunity to the husband for such offences. The Domestic Violence Act will also apply in such cases

and the husband does not get immunity. There are many other offences where the husband is either specifically liable or may be one of the accused. The husband is not given the immunity in any other penal provision except in Exception 2 to Section 375 IPC.

* If a wife was to lodge an FIR against her husband for having raped her, Section 482 would, ordinarily, not be available to the husband, who would have to contest the trial and establish his innocence, as the act that he committed would,

with the evisceration of the impugned Exception, become an offence of rape.
* Earlier husband have to approach in court with 482 of the Cr PC and seek that the FIR be quashed, for the simple reason that, it is, statutorily, not rape but after MRE struck down this provision will

be not available to men.
* If MRE struck downed, then it will be gender specific offence (Targeting only one gender).
* Creation of gender-specific offences at the expense of marital institutions. The abuse of the provisions of Section 498A of the IPC has been recognised by the

courts and, therefore, there is a need to introduce gender-neutrality in the sphere of sexual violence. Therefore, if MRE is struck down, it would only add to the existing inequities and injustice.
* If Marital Rape criminalised then it would create a new class/specie of offence

which is beyond the power of judicial review conferred on this court.
* In case MRE is struck down, it is likely to be misused as has happened in respect of cases lodged under Section 498A of the IPC. [See Sushil Kumar Sharma.]

* Like 498A, Marital Rape law will be misuse and it will turn out to be abuse of legal remedies which may end up harming an individual's dignity/reputation.
* Striking down MRE would destroy the institution of marriage is meritless since the husband can be prosecuted for

several other offences in relation to the other acts.
* Section 114A presumes want of consent on the part of the prosecutrix, in every case of prosecution for rape. If “rape” is to apply even to non-consensual sex within marriage, and a wife is to allege want of consent, it may

conceivably become extremely difficult, if not impossible, for the husband to discharge the onus cast on him, by Section 114A, to prove existence of consent, as the act has taken place within the confines of the bedroom.

* After struck down of MRE every act of non-consensual sex by husband with his wife will be rape, if women lodges complain.
* Offences may legitimately be made perpetrator-specific or victim-specific. In the present case, Section 375,

read as a whole, makes the act of ‘rape’ perpetrator-specific, by excepting, from its scope, sexual acts by a husband with his wife.
* Article 14 permits reasonable classification based on nexus and object that is sought to be achieved by the legislature. The 167th report of

the Parliamentary Standing Committee inter alia states "..... It was, therefore, felt if the marital rape is brought under the law, the entire family system will be under great stress .....".
* it would become near impossible for the accused husband to establish want of consent,

and Section 114A of the Evidence Act would operate to ensure, in almost every case, a conviction. Learned Counsel for the petitioners sought to contend that the effect of Section 114A of the Evidence Act would apply equally to rape outside marriage as to rape within marriage.

* applying the “mischief rule” of interpretation, the husband would prosecute under Section 376(2)(f), the fact that a husband is a relative of his wife, as well as a person in a position of trust towards his wife.

* From above facts, men who is married will get more punishment while compared to separated and strangers.
Q: What about prelimnary inqury ?
A: * This is also the reason why preliminary enquiry is required to be carried out under Section 198B of the Code to assess if couples

live apart while residing under the same roof before booking the husband for an offence under Section 376B of the IPC. Given the age of sexual liberation that we live in, it is not possible to conclude whether the wife was exposed to sexual cruelty or non-consensual sex. In other

words, even the presence of bruises or injury cannot automatically lead to an adverse conclusion as they could be merely a manifestation of passion that may subsist between spouses when they indulge in sexual acts.

END. N/N
Now soon my friend @smitaverse will cover female POV.

@smitaverse Adding some more info:
Q: The wife who wants her marriage and kids to entact will not likely to file complaint, then who will file ?
A:
* The women who wants lumson money from husband and have anger on him because of some quarrel.
* It will likely to get misused like 498A.

Note: I am not saying that there are no victim but there are remedies available already to counter abuse.

But in courts, most of the cases get settled with money, and If MRE stuck down, this will lead to most of the time in settlement.

https://twitter.com/vixxkigoli/status/1570634849249267712?s=20&t=fs3v62fANDPYxuxcCvZeKA

Hashtag: #BoycottMarriage #MarriageStrike #maritalrape #SupremeCourt
Tagged: @jsaideepak @jyotiTpandey05 @Ambar_SIFF_MRA @Das1Tribikram @Try2StopME @Manish_AFT @DeepikaBhardwaj @monicagarkhel @barkhatrehan16
Please read this thread. ☝️

My Opinion:
* Law should be gender neutral.
* Preliminary Inquiry must be necessary in this cases.
* It will be ground of divorce then court must debate over alimony and maintenance.
* Misuse must be countered.
* Punishment must not be harsh because there

is intelligible differentia between stranger and married couple. ( exceptions with some cruel cases )

* We should not call it rape, instead 'spousal sexual assault'.

Here is the whole balanced thread by @smitaverse
She covered female POV as well as her opinion after debate is just lit.

https://twitter.com/smitaverse/status/1570718254083248131?s=20&t=8goSruPPqsKYqMwayXgkIA