Pleas Challenging Marital Rape Exception : Live Updates From Supreme Court

J Pardiwala : In case a husband demands, the wife declines, then he goes to the extent of confining her , that is wrongful confinement, then he threatens her then she succumbs and act is done - S. 323, 324, 325, 326 etc happens- all these are done so that the wife succumbs but it is exempted under the exception

Nandy: when there is rape outside of marriage you will also have S. 326

Nandy: Joseph Shine also deals with this aspect

CJI: what do you have to say by the argument that striking down the exception and criminalizing the acts of non-consensual intercourse would have the possibility of de-stabilizing the marriage

Nandy: the parliamentary sovereignty approach in England means the Courts have a hands off approach....this court was never held back in striking down such provisions

Nandy refers to the 'Hails Principle' of English Law where the husband cannot be held guilty of rape as wife 'gives up her body' to the husband on marriage

CJI: the UOI has given a go by the hail principle, they say that there are other provisions such as DV Act for grounds of divorce

Nandy: Mylords maybe told later that the decision only deals with age but it deals with the issue of offence also

Nandy reads the decision in Independent Thought - there can be no cavil of doubt that the courts cannot create an offence

Nandy refers to S. 338 of the General Clauses Act - which defines the term 'offence'

Nandy: Independent Thought decision already deals with these aspects

CJI: so according to you , the Act itself constitutes the offence and the exception carves out