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Important to consider Section 375 from the point of a woman: Rebecca John on marital rape in Delhi High Court

Senior Advocate Rebecca John has commenced her submissions before the Delhi High Court, in favour of striking down  ‘marital rape exception’ to Section 375 of the Indian Penal Code, 1860.

The Division Bench comprising Justice Rajiv Shakdher and Justice C. Hari Shankar was on Wednesday hearing a bunch of petitions filed by NGOs RIT Foundation, All India Democratic Women’s Association and two individuals, seeking striking down of Exception 2 to Section 375 of the Indian Penal Code, 1860 on the ground that it violates the dignity of women and their personal sexual autonomy.

John, the Amicus Curiae assisting the court on the issue, commenced her submissions by reading out  Section 105 of the Indian Evidence Act, which  places the onus of proving the exception on the person who pleads it and said that whenever any exception is pleaded, the threshold to be crossed is one of ‘preponderance of probability’.

John submitted that the foundational basis to marital rape exception is the ‘factum of marriage’ and that once there is a valid subsisting marriage between a man and a woman, no prosecution can be invoked by a wife upon her husband by virtue of the immunity granted under the provision.

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Exception carved out to protect conjugal rights of husband

She referred to the initial draft of the criminal law as framed by Lord Thomas B. Macaulay to emphasize that Exception 2 to Section 375 was carved out in order to favour the conjugal rights of the husband, and traces its origin from the common law doctrines of ‘coverture’ and ‘implied consent’- the proposition that the legal rights of a woman were subsumed by her husband after marriage and by entering into marriage, a wife was considered to have granted irrevocable sexual consent to her husband. She cited the Matthew Hale’s dictum according to which a husband can never be held guilty of raping his lawful wife, “for by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto her husband which she cannot retract”.

John referred to the House of Lords decision in “Regina vs. R”, wherein it was observed that Hale’s proposition is a “common law fiction” and is “inconsistent” with the proper relationship between husband and wife. She cited another paragraph from the decision which reads thus- “the time has now arrived when the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with victim.”

She also explained what would constitute the offence of rape under Section 375, which according to her is the descriptive act enumerated under clauses (a) to (d) of the provision accompanied with the circumstances or conditions stipulated thereunder. 

“What is being penalized is not the descriptive act, it is not the sexual act. What is being penalized is the sexual act described in the first part of the section along with the conditions mentioned from Firstly to Seventhly,”

-she said.

“Section 375 is an amalgamation of descriptive acts with the conditions mentioned from Firstly to Seventhly. One cannot survive without the other,” she stated further.

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She added that since Section 375 is the only provision where a woman’s consent is central and her non-consent becomes the basis for invocation of a penal provision, it is important to consider it from the point of view of a woman.

The Bench, during the beginning of the hearing, dismissed as withdrawn an interpleader application by NGO Raise Hope challenging the petitions, on the ground that it has been moved at a highly belated stage when the arguments have reached the final stage.

The Bench will continue hearing John’s submissions at 3:00 pm today.

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