Pleas Challenging Marital Rape Exception : Live Updates From Supreme Court

CJI notes that the only difference between the s.63 BNS ans s.375 IPC is that under the exception no.2 - age of 15 years is now 18 years

Nandy : Explanation 2 - in this jurisdiction yes means yes

Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Nandy : sections a-d are actions if done without her consent which will constitute rape

Nandy reads S.63 BNS

A man is said to commit “rape” if he—

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:—

(i) against her will;

(ii) without her consent;

(iii) with her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt;

(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;

(v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent;

(vi) with or without her consent, when she is under eighteen years of age;

(vii) when she is unable to communicate consent.

Exception 2 of Section 375 of the Indian Penal Code (now Section 63 of BNS) states : "Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape"

Nandy : is parimateria of exception under S.63 BNS

Nandy: the matter arose when the AIDWA went to Delhi HC, I was leading the arguments in HC also...here we challenged S.375 exception 2 of IPC

Sr Adv Karuna Nandy opens the arguments

CJI: 8.1 and 8.6 are the two WPs (challenging the penal provisions )

CJI: who will open the arguments?

Karuna Nandy : Iam in 3 matters

Gopal S: my brief is ready