Monday, February 6, 2023

Advocate Karuna Nundy calls Exception 2 to Section 375 as outdated notion of marital relations, having no place in just criminal order

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Advocate Karuna Nundy advanced her submissions before the Delhi High Court, supporting her claim for striking down of Exception 2 to Section 375 of the Indian Penal Code, 1860, on the ground that the same was archaic, based on an outdated notion of marital relations, which has no place in a just, constitutional and criminal order.

The Special Bench of Justice Rajiv Shakdher and Justice C. Hari Shankar is dealing with a batch of petitions seeking criminalization of marital rape in the country.

Applying the inversion test on the Independent Thought decision, Nundy, representing NGOs RIT Foundation and All India Democratic Women’s Association, reiterated that the Independent Thought was a binding authority as if the observations were reversed, the Court could not have reached its conclusion.

Justice Shankar pointed out that the inversion test as applied in “Nevada Properties” judgment, stated that the Courts must carefully carve out a 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.

He remarked that the first thing to be done while applying inversion test is to frame a legal proposition. “That proposition is not be taken from the judgment. It is the proposition which you want to see whether the judgment is a precedent,” he cleared.

He further pointed out that the Apex Court in the Independent Thought decision made it clear that the judgment does not deal with the larger issue of marital rape of adult women and that nothing said in the judgment shall be taken to be an observation one way or the other with regard to the issue of marital rape. “If we apply the inversion test, start reversing the judgment and then say that this is a precedent for Exception 2 to Section 375, are we not doing violation to the Supreme Court?”- he questioned.

Nundy argued that the Independent Thought was binding inasmuch as it recognizes that the artificial distinction created by the exception between an unmarried and a married woman was arbitrary in the sense that it lead to an anomalous situation where the husbands could be charged with lesser offences but not rape.

She further argued that under Article 13 of the Constitution, the Courts are bound to act if a pre-constitutional provision is found to be in violation of the Fundamental Rights of the citizens, instead of sending it back to the Legislature to remedy the wrong.

Referring to a catena of decisions, she stressed upon the fact that the institution of marriage is in no manner desecrated by criminalising forced sexual intercourse and that the exception was, in first place, added to favour the conjugal rights of the husband. She drew the attention of the Bench on how the penal provision qua rape has been amended time and again to protect the bodily integrity and dignity of women.

“If the object of the marital rape exception continues to remain the protection of conjugal rights of the husband or of the institution of marriage, then such an object is in itself unconstitutional,” she submitted, while adding that the outdated notion of conjugal right does not align with post-constitutional law on constitutional rights as now “conjugal rights end where bodily integrity begins”.

At this point, the Bench once again asked the counsel to apprise it on decisions indicating that no new offence would be created if the provision is struck down.

Advocate Nundy would continue to advance her submissions on the issue.
During the course of hearing, the Centre informed the Bench that it was re-looking at the affidavit filed earlier and a final decision would be taken in due course of time.

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