Criminalising marital rape will lead to creation of new offence: Justice C Hari Shankar expresses prima facie view

Justice C Hari Shankar of the Delhi High Court on Tuesday expressed a prima facie view that the court striking down the exception provided under Section 375 of Indian Penal Code (IPC) to non-consensual sex within marriage, would amount to creation of a new offence [RIT Foundation v Union of India]..“Prima facie, I cannot see how we are not creating a new offence by striking down Exception 2. If we are, then the entire parameter of discussion changes,” he said..Justice Hari Shankar is part of the Delhi High Court Division Bench which is hearing arguments in a batch of petitions demanding the criminalisation of marital rape. The petitions have challenged Exception 2 to Section 375 of the Indian Penal Code (IPC) which effectively grants immunity to husbands from being charged with rape if they establish sexual relations with their wives without consent..Justice Rajeev Shakdher, who is also on the Bench, however, said that he would not express his prima facie views at the moment.“This is like going back and forth. The concerns of J Shankar are there. He has articulated those. We can go on and on. We want to hear what the government has to say…If this is only a prima facie view, we have to discuss it. I don't want to say what my prima facie view is. I think the government has a lot to say,” he said..These observations were made during the arguments of Advocate Karuna Nundy, who appeared for the petitioners.Nundy argued that conjugal rights end where bodily integrity begins. Conjugal rights, she said, begin and end at cohabitation and the rest is expectation, as no wife has given her forever consent to her husband.“The conjugal right begins and ends at cohabitation, rest is expectation. A denial of this expectation is a perfectly fair ground for divorce...There is an expectation and an in-principle agreement, it may even be an agreement to agree. No wife is saying that when I am ill or exhausted or menstruating that I hereby and forever consent to sexual intercourse. And that if you have intercourse with me, that will be something else, a lesser offence or not called a rape. That it will be akin to slapping or pinching of the posterior.”She added that by virtue of Exception 2, a husband can impose his right without going to a court of law, and thereby do something illegally which cannot be done legally.“It would be like saying a wife who believes that she has a right to maintenance is permitted to sell her husband's property without his consent… Even the Court cannot direct a couple to have sexual intercourse. It is not a conjugal right. If any party refuses to cohabit, then it is only enforceable by attachment of property. A spouse can claim divorce on grounds of cruelty.”.She further said that if the object of the Exception under challenge was protection of conjugal rights of the husband or the institution of marriage, then that object itself is unconstitutional, and thus the Exception cannot remain on statute books.“If protection of conjugal rights was to be taken as the object of Exception 2, the same doesn’t align with post-constitutional law on conjugal rights in India as conjugal rights end where bodily integrity begins…In failing to get rid of the marital rape Exception, they seem to be implying that if a husband penetrates or makes anyone else do it, it is a conjugal right. It is our submission that this object itself is unconstitutional and therefore the Exception 2 cannot remain on the statute books.”Reference was again made to the Supreme Court’s judgment in Independent Thought to argue that the institution of marriage is not desecrated by criminalising forced sexual intercourse.“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 struck down as being manifestly arbitrary.”.Meanwhile, the Court yet again asked the Central government to make its stand on the issue clear, as there are only two ways to close the issue -either by the legislative process or through the judiciary.As Additional Solicitor General Chetan Sharma requested for a week’s time, the Bench asked Nundy to deal with the Centre’s position stated in its earlier affidavit and written submissions where it had opposed the petitions and said that the criminalisation of marital rape has the potential to damage the institution of marriage..[Marital Rape] If striking down Exception 2 amounts to creation of a new offence, should we not touch it? Delhi High Court.Here are the summaries of what happened at previous hearings:Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9Day 10Day 11Day 12Day 13Day 14Day 15