'Marital Rape Will Remain Condoned Unless Criminalized, Marriage Not License To Ignore Consent': Adv Karuna Nundy Argues In Delhi HC

The Delhi High Court on Monday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Advocate Karuna Nundy argued before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar that until the act of marital rape becomes an explicit offence, it will remain condoned.

Nundy was making rebuttal arguments on behalf of two petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA).

Arguing that the declaration of a right by a Court has powerful force, Nundy said:

"Until marital rape becomes an explicit offence it will remain condoned. This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse. It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal license to ignore consent."

The first limb of Nundy's submission was that the Constitution of India is transformative and the citizens are transforming by it.

"With the Constitution in our hands, women have gained universal suffrage and the right to vote, to worship, to work without being sexually harassed and against triple talaq. Our constitution has travelled through the judgments of our courts and we the people have travelled with it," Nundy submitted.

She submitted that the force of Court's decision, in adjudicating the constitutionality of exception 2 to sec. 375, will go a long way to realising the long cherished constitutional goal which is about equal respect and dignity to all citizens.

She said "The reason constitutional Article 20(1) exists, and one cannot commit a criminal offence that didn't exist at the time of commission is, in Maya Angelou's words "do the best you can until you know better and then you must do better".

Another limb of Nundy's submissions was that the Supreme Court's decision in Independent Thought case is a binding precedent with respect to Exception 2 to Section 375 of IPC. To bring home the point, Nundy relied on the inversion test which is evolved by Supreme Court in order to determine the ratio of a decision.

She placed reliance on the decision of the Supreme Court in Nevada Properties Pvt Ltd v. State of Maharashtra (2019) wherein a three judge bench held "…the Court must first carefully frame the supposed proposition of law and then insert in the proposition a word reversing its meaning to get the answer whether or not a decision is a precedent for that proposition. If the answer is in the affirmative, the case is not a precedent for that proposition. If the answer is in the negative, the case is a precedent for the original proposition and possibly for other propositions also."

Nundy then relied on various observations from the Independent Thought judgment and did a reverse reading of the same, applying the inversion test.

She argued that the Independent Thought case would therefore be a binding authority for the Court, since if the observations were to be reversed, the Court could not have reached the conclusion which it did.

During the course of hearing today, Justice Shankar asked Nundy to address the question as to whether the Court will be creating a new offence in case exception 2 of sec. 375 is struck down?

Furthermore, Justice Shankar queried thus:

"Second aspect is sec. 482 of CrPC. Today if a wife was to file a complaint against her husband, and was to make a statement that he is my husband and he has raped me, please proceed under sec. 376. Now assume an FIR is registered. Once she says he is her husband, there is no offence within sec. 375 and 376 because she has admitted him to be her husband. Therefore he can go under sec. 482 of CrPC or even Article 226 saying that there is no offence and please quash it. He has to give no defence. But if it's struck down, tomorrow the same complaint is filed, he cannot go. Sec. 482 or 226 is no longer available to him because now it's an offence. So the act which today he can get it quashed, he cannot have the releif if it's struck down. So the question again is are we not creating an offence?"

To this, Nundy replied that she will be addressing the queries in a nuanced manner in her submissions.

Furthermore, Justice Shankar also reiterated his point that the exception 2 of sec. 375 is based on a qualitative difference in terms of the relationship between the parties and not necessarily on the 'fiction of consent.'

He said that the intelligible differentia of the exception 2, while determining the test of Article 14, has to be tested on the legislative object behind the exception itself and not on the object behind rape laws.

Justice Shakdher further asked Nundy to address the question as to whether exception 2 of sec. 375 is manifestly arbitrary or discriminatory or both. He also asked her to address the question of creation of a new offence.

Yesterday, a query was put forth by Nundy as to whether the Central Government would stick to its earlier stand in terms of previous written submissions and affidavit filed in the matter, or its latest stand that it is seeking suggestions from stakeholders to revisit the issue.

Today, Justice Shakdher questioned Advocate Monika Arora appearing for the Centre to clarify to which she replied that she was not in a position to reply the said question today.

"You need to come back with an answer. In between if there is some development which is relevant, then we can take cognizance of that," Justice Shakdher then remarked.

Earlier, Nundy had argued that the marital rape exception provided under sec. 375 of Indian Penal Code violates a woman's right to dignity, personal and sexual autonomy and her right to self expression enshrined under the Constitution of India.

Marital Rape Exception Violates Woman's Right To Dignity, Personal & Sexual Autonomy And Right To Self Expression: Petitioners Tell Delhi HC

Previously, Senior Advocate Rebecca John appearing as amicus curiae in the matter concluded her submissions. She submitted that the retention of exception 2 of Sec. 375 of IPC will not be constitutional.

John had also submitted that availability of other provisions in various legislations including  Sections 498A, 304B of IPC, Domestic Violence Act and other civil remedies, are insufficient to deal with the offence of rape under sec. 375, as regards to a wife alleging rape by her husband.

Senior Advocate Rajshekhar Rao, appearing as the other amicus curiae, had argued that while the legislature does not say that the husband is entitled to sexually assault or abuse his wife, however the marital rape exception suggests that a man can rape his wife and get away from the prosecution of rape.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Case Title: RIT Foundation v. UOI and other connected matters