Sunday, February 5, 2023

Marital rape: Delhi HC asks amicus to take decision on postulation

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The Delhi High Court on Tuesday asked Senior Advocate and Amicus Curiae Rebecca John to consider whether the postulation that the exception to Section 375 of the Indian Penal Code, 1860, takes away or abridges the right of a woman to prosecute for rape when the perpetrator is the husband is a correct and proper analysis of the exception.

The Division Bench of Justice Rajiv Shakdher and Justice C. Hari Shankar is dealing with a bunch of petitions seeking striking down of the exception to Section 375 to the extent that it exempts forceful sexual intercourse by a husband with his wife, the wife being over fifteen years of age, from the ambit of offence of rape.

Senior Advocate Rajshekhar Rao, while continuing his submissions in support of striking down of the provision, referred to a paragraph from the decision of the Apex Court in the case of “Hiral P. Harsora And Ors. Vs. Kusum Narottamdas Harsora And Ors.” wherein it was observed that “all persons are equal before law is fundamental of every civilised constitution”, and stated that the exception subverts the doctrine of equality by restricting the reach of a social beneficial statute to a woman upon being married.

Emphasizing that the Indian Constitution is a masterpiece written down by the framers in such a manner that an individual and his life, liberty and dignity are placed at the centre, he read out Article 13 (2) of the Constitution which prohibits States from making laws which takes away or abridges rights conferred on the individuals by the Constitution. He thereby stated that the provision, in a way, takes away or abridges the right of a married woman to seek a legal remedy for an act which when done by a third person, would have entitled her to prosecute the person for the offence of rape.

He also referred to the decision of the Apex Court in the case of “Navtej Singh Johar & Ors. Vs. Union of India,” wherein the court observed that a law which infringes the fundamental rights of any group of people, however minuscule their percentage may be, there should be no hesitation in striking down such laws.

He reiterated that even though various judicial decisions have recognized the right of a woman to say ‘no’ and the fact that “a rapist remains a rapist irrespective of the relationship”, the exception does the exact opposite and strikes at the core of woman or a wife’s dignity. “Supreme Court recognizes that a woman has a right to say no. In effect, by keeping this exception on the statute book, you are in a sense taking away that right to say no,” he said.

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He concluded his arguments by submitting that the whole issue is egregious on the ground that it is in the context of a relationship the societal foundation of which is love and happiness.

John has begun her submissions on Wednesday. The Bench has asked her to also address the arguments from the point of view of legislative as well as the judicial history considered over time while taking a progressive approach, and also to consider whether the postulation that the provision affects the right of a woman to prosecute her husband for the offence of rape, is a proper analysis of the exception.

Towards the end of the hearing, Additional Solicitor General Chetan Sharma submitted  before the Bench that the Centre has adopted an informed consultative process on the issue of marital rape, and would come up with an appropriate decision. 

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