Exception must be viewed as instrument of oppression: Amicus tells Delhi HC on marital rape matter
Jan 20, 2022
New Delhi [India], January 20 : Senior advocate on Thursday while assisting Delhi High Court hearing on a batch of petitions demanding criminalisation of marital rape said that exception must be viewed as an instrument of oppression.
Senior Advocate Rebecca John, Amicus Curiae in the matter, argued before the division bench of justices Rajiv Shakdher and C Hari Shankar of Delhi High Court that a married woman can be subjected to sexual intercourse without her consent then that exception too must be viewed as an instrument of oppression.
The exception to Section 375 of the Indian Penal Code, says sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Amicus John submitted that a class of individuals who enjoyed legal immunity from prosecution due to exception will now lose it if it is declared as unconstitutional. "That is not creation of a new offence. It is simply lifting of immunity from prosecution," the advocate submitted demanding to strike down the exception to Section 375 of the Indian Penal Code.
"To my mind, this is nothing but a legal fiction. And if this fiction is removed, it will not be the creation of a new offence," she said.
During the hearing, Justice C Hari Shankar asked what is the guarantee of freedom which is being curtailed by exception 2. Amicus John replied that the freedom to say no.
Then Justice Shankar remarked that whether amicus John believes the exception said "a woman cannot say no".
John replied that the consequence of the exception is that the man where he is otherwise raping his wife will not be punished for rape only because he is married and the second part will not be given effect to.
The hearing went for almost two hours, whereby amicus John opined that exception is giving a complete exemption and immunity to the husband. Hence she opined that a refusal, non-consent or no to your marital partner must be respected. Henceforth, she remarked that this is the reason why this requires serious judicial intervention.
John submitted that as an amicus in the matter, his view that that the expectation of sex or meaningful conjugal relations can be mutual, which is fair expectation.
There can be a unilateral expectation as well and if that expectation is not fulfilled, then the spouse has every right to resort to civil remedies. However when the expectation within marriage becomes a physical act that is non-consensual causing harm and injuries then that sexual act must become an offence, she submitted.
She also raised issues whether a husband can get the benefit of exemption when wife denied consent due to health reasons. Amicus John also mentioned a case where a woman is gang-raped by her husband and his friend also had sexual intercourse. "Will it not lead to absurdity if the friends are charged with the offence but husband claims exception," she said.
The court was hearing a batch of petitions including by the NGOs RIT Foundation and All India Democratic Women's Association who have challenged an exception to section 375 to the Indian Penal Code.
The hearing will be continued on Friday too.
Meanwhile, Delhi High Court refused to entertain impleadment application filed by Purush Aayog. Advocate Vivek Narayan Sharma mentioned that he has filed an intervention application on behalf of Purush Aayog. The HC said that it can not entertain any application at this stage, however, he may make suggestions to the counsels, who have already joined the proceedings. "We are not post-box, it is not acceptable, " the Court said and directed his court master to tell the registry to not accept any applications.
