Marital Rape Exception Has No Rationale Nexus With Objects Of Constitution, Violates Art. 14: Adv Karuna Nundy To Delhi High Court

The Delhi High Court on Tuesday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.Advocate Karuna Nundy argued before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar that the marital rape exception is archaic, based on an outdated notion of marital relations that has no place in a just, constitutional and criminal order. "It is thus ripe for being striking down as being manifestly arbitrary," she added. Nundy was making rebuttal arguments on behalf of two petitioners namely RIT Foundation and All India Democratic Women's Association (AIDWA)During the course of hearing today, Nundy continued doing a reverse reading of the relevant observations from Independent Thought judgment, applying the inversion test. On this, Justice Shankar said that the Supreme Court in the said judgment had clearly stated that nothing in the judgment shall be an observation to be considered with respect to the issue of marital rape. Remarking so, Justice Shankar questioned Nundy that given such express position, will it be appropriate for the High Court to still apply the inversion test and reverse the findings of the Apex Court. To this, Nundy replied "It is our case that Independent Thought is a binding authority for each of these propositions (as referred to from the judgment), since if each proposition were to be reversed, the Court could not have reached the conclusion it did."Justice Shakdher then remarked: "It is one thing to say that principles laid down there or what you contend can be looked at while examining your contention. It is another thing to say it's binding."She argued that if some of the major propositions laid down by the Supreme Court in Independent Thought judgment for reading down exception 2 is examined by the High Court, then in that situation, the result would be that the authority would be binding.Nundy then argued that the Parliamentary debates cannot be taken into account while dealing with constitutionality of a provision when the same is pre-constitutional. To argue this, she relied on the case of Navtej Johar v. Union of India wherein the Supreme Court observed "The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament,used with or without amendment, being manifestations of will of people of India through Parliament, are presumed to be constitutional. We are afraid that we cannot agree."On the aspect of testing the marital rape exception on the anvil of Article 14, Nundy submitted that according to the classical test of the Apex Court, merely satisfying the test of intelligible differentia is insufficient.Marital Rape Exception Based On Intelligible Differentia Of Marriage: Men Welfare Trust Argues Before Delhi HCShe added that Article 14 requires satisfaction of all its essentials including, one, an intelligible differentia for the distinction and two, the same must have a rational nexus with the object sought to be achieved."These tests apply with greater vigor to pre constitutional legislation such as the present case, where there is no presumption of constitutionality," she added. Arguing on the element of marital rape exception being manifestly arbitrary, Nundy submitted that the mere existence of some logic of a legislative purpose or scheme is not sufficient to protect a legislation from manifest arbitrariness if the determining principle or its rationale is not in consonance with the Constitution.Referring to the judgment of Joseph Shine v. Union of India, Nundy argued that the provisions that postulate a notion of marriage that subverts equality is manifestly arbitrary and bad in law."The institution of marriage is not desecrated by criminalising forced sexual intercourse; to retain a law that condones at any level forced sexual intercourse within the institution, in fact, desacralises it," she argued. Adding further, Nundy said that while there can be no doubt that there is an intelligible differentia between married and unmarried persons in the laws, however, she added that such laws meet the anvil of Article 14, unlike the marital rape exception. She submitted "If the object of the marital rape exception continues to remain protection of conjugal rights of the husband or of the institution of marriage, then such an object is unconstitutional and thus the exception cannot remain on the statute books."She also argued that although the Parliamentary debate made reference to preserving the institution of marriage as a valid justification for retaining the marital rape exception in the statute, however, she said, that the same is "subsidiary and directly contrary to the explicit object of the enacted legislation"."It is important to note that the Hindu Marriage Act and the Special Marriage Act are post-independence and post-constitutional statutes. Indian legislature and Courts have applied...

Marital Rape Exception Has No Rationale Nexus With Objects Of Constitution, Violates Art. 14: Adv Karuna Nundy To Delhi High Court

Nupur Thapliyal

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