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Indirect effect of provision denies a woman the right to prosecute for what is rape otherwise: Amicus Rao says in Delhi High Court

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Reiterating that the core issue involved is that the consent of a woman or a wife is relevant in law but gets legally obfuscated when a woman wants to prosecute her husband for rape, Amicus Curiae Senior Advocate Rajshekhar Rao advanced submissions underpinning striking down of Exception 2 to Section 375 of the Indian Penal Code, 1860.

The Division Bench headed by Justice Rajiv Shakdher and Justice C. Hari Shankar is hearing a batch of petitions seeking criminalization of marital rape in the country. 

He referred to a video created by a police organization the United Kingdom which sought to explain the concept of consent using an example of a cup of tea, and argued that- “what Section 375 incorporates is the ability of a woman to say ‘no’.  It incorporates a situation where a woman may have said yes, but the law decides that she cannot say yes because she is either immature or for various other reasons. The law steps in as parens patriae as decides that yes is also a no.”

He stated that the statute, amended in the backdrop of Justice Verma Committee Report, on one hand penalizes a person for absent of consent, but on the other hand chooses to omit that when the relationship between the perpetrator and the victim is that of a husband and wife.

At this juncture, Justice Shankar pointed out that the statute does not say absence of consent is irrelevant in the case of rape where the perpetrator is the husband and the victim is the wife. “The entire arguments advanced so far is kind of not noticing what exactly is the issue in my prima facie opinion. According to me, consent is not the issue here,” he said.

He further argued that various judicial decisions have noted that “marriage is a partnership of equals”, that “a woman is not a man’s chattel”, and also that if a woman decides not cohabit with a man despite marriage, the remedy available to the husband is only to seek restitution and not to “sleep with her”. 

He stated that the indirect effect of the provision is to deny the ability to a woman to prosecute for an act which the law otherwise recognizes as rape. “The Exception seems to have no regard to the consent of the wife…..The fact that she has decided to marry a man who has now decided to ignore her consent, does that entitle the Legislature to say it is intelligible for me to differentiate between these two relationships and to deny her the ability to prosecute for that one act?,”  he added.

It was further stressed by him that a woman has an individual dignity and an individual choice, which is legally recognizable and available to her even after entering into a matrimonial relationship. The foundation of Section 375 is that “no one can compel a woman to make love”, and the exception, thereby, fails to satisfy the test of constitutionality embedded under Article 21 inasmuch as it causes an incurable dent to the dignity of a woman.

He concluded by raising a question whether it is reasonable, just and fair to deny the ability to a woman to call a rape as rape, and whether the exception is justified within the ambit of the legal framework.

The Bench will continue to hear the matter on Monday and has asked the Centre to apprise the court of the stand taken by it after the Amicus Curiae concludes with his chain of submissions.

The petitioners in these matters, represented by Advocate Karuna Nundy, include NGOs RIT Foundation and All India Democratic Women’s Association and two individuals, who have challenged an exception to Section 375 of the Indian Penal Code, on the ground that it excludes sexual intercourse by a man with his own wife, the wife being above fifteen years of age, from the offence of rape.

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