Monday, February 6, 2023

Immunity granted to husband fictional consent: Advocate Karuna Nundy on marital rape in Delhi High Court

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Advocate Karuna Nundy has concluded her rejoinder submissions before the Delhi High Court in support of striking down of the exception, which exempts forceful sexual intercourse by a man with his wife from the ambit of offence of rape, emphasising that the immunity granted to the husband is rooted in “fiction of consent” and that if the provision is struck down, merely ‘a new class of offenders” would be added to the already existing provision.

The Bench of Justice Rajiv Shakdher and Justice C. Hari Shankar is hearing on a daily basis a bunch of petitions seeking criminalization of marital rape in India.

Nundy is appearing for the petitioner NGOs RIT Foundation and All India Democratic Women’s Association. She contended on Wednesday that the alleged provision grants license to a husband to forceful sexual relationship with his wife. “The exception in Section 375, thus, at the very least, condones a situation in where a man forces his wife to have sex by calling it not rape.

This is nothing more than a licence for a husband to force his wife into sexual intercourse without penal consequences for rape,” she said.
She reiterated that the rationale for the marital rape exception to the extent that it seeks to protect the conjugal rights of a husband is not legitimate and based on an outdated notion which fails to align with the post-constitutional understanding of conjugal rights.

Referring to the decision in S. Sundaram Pillai case, she illustrated how the marital rape exception is destructive of the main provision inasmuch as it nullifies the object of the main enactment by taking away the right conferred by the provision. “By attempting to privilege the institution of marriage over Article 21 and other rights of the wife in the marriage is an unconstitutional object,” she said while pointing out how the exception nullifies the object of main provision.

On the issue of whether a new offence would be created if the provision is struck down, she submitted that offence as defined under Section 40 of the Indian Penal Code denotes an act or a thing done which has been made punishable. To buttress her point, she relied on a catena of judgment and stated that the offence of rape under the penal code is the act of forcible non-consensual sexual intercourse which is unrelated to the relationship between the perpetrator and the victim. “Striking down the exception would not create a new offence categorically, only a new class of offenders would probably be brought into the ambit of an existing offence,” she claimed.

“If the corollary of striking it down that is the class of offenders who were earlier not included within the ambit of that provision may now be charged under the provision, this is not the creation of a new offence, but only a by-product of the court fulfilling its duty under Article 13,” she added.

Furthermore, she illustrated how the exception curtails a married woman’s freedom of speech under Article 19 inasmuch as she is not allowed to say whether or not she wants sexual relationship with her husband. “Not only does it not recognize the right of a married woman to say no, it takes away her ability to say a joyful yes. A wife’s sexual desire and consent is reduced to a nullity,” she argued.

She concluded, while referring to a study published in Indian Law Review, which examined the rape judgements pronounced by Trial Courts in Delhi over a period of time and argued that the conviction in rape cases is significantly low and a matter of great concern; and urged for a comprehensive and adequate sentencing policy in rape cases.
The matter would again be taken up at 3:00 pm today, when Senior Counsel Colin Gonsalves, representing one of the individual petitioners in the issue, would address the Bench.

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