[Marital Rape] If striking down Exception 2 amounts to creation of a new offence, should we not touch it? Delhi High Court

While hearing arguments in the petitions demanding the criminalisation of marital rape, the Delhi High Court on Monday asked whether striking down the exception provided in Section 375 of the Indian Penal Code (IPC) would amount to creating a new offence [RIT Foundation v. Union of India]..Justice Rajeev Shakdher said that the judgments in Joseph Shine and Shayara Bano were cited to argue that the courts have repeatedly held that they cannot create an offence and that the issue lay outside their jurisdiction.“Let's assume it is the creation of a new offence and I heard speakers before you saying that it is manifestly arbitrary. They said if the provision fails the test of Article 14 and 21, it may be the duty of the Court to step up and do what is right. The other side argued against it and said the Court should not act on it. They said there is a differentia which is intelligible…We were taken through Joseph Shine and Shayara Bano. Assume it is the creation of a new offence, then what? Should we say we will not touch it?” he asked..Justice C Hari Shankar, also on the bench, asked Advocate Karuna Nundy to check precedents in which the courts have struck down a provision even if it amounted to a creation of a new offence. Justice Shakdher said that the Bench, in the present matter, may be creating a new precedent.Justice Shakdher has now asked Nundy to address this aspect in her rebuttal submissions on Tuesday..A Division Bench of Justices Shakdher and Hari Shankar has been hearing arguments in the petitions challenging the constitutional validity of the Exception 2 provided in Section 375 of the IPC. The Exception provides that charges of rape cannot be attracted against husbands even if they establish sexual relations with their wives without consent..On Monday, Nundy argued on the aspect of the Independent Thought judgment of the Supreme Court, after applying the inversion test to it.She argued that a woman cannot be treated as a commodity having no right to say no, and if the test of inversion is applied to the Independent Thought judgement, then several paragraphs of it would be rendered otiose.“If we reverse the proposition in Independent Thought applying the inversion test, the judgment would say that a rapist does not remain a rapist and marriage does convert him to non-rapist… A rape that actually occurs can be wished away by the legislature and denied as non-existent.”Nundy submitted that in that judgment, the apex court had said that it was not creating an offence but doing away with a legal fiction, and that taking away an already existing clause does not mean that a new one is being brought in.On Tuesday, she will focus on the issue of unconstitutionality of the Exception as well as the questions posed by the Bench regarding striking down of a provision even if a new offence is created..The Court meanwhile has asked the Central government to come up with an answer on the issue of whether the counsel for the petitioners should argue on the affidavits and the written submissions filed by it earlier, in which it had opposed the petitions..[Marital Rape] Counsel for both sides say they have received flak for their stand on the issue.Here are the summaries of what happened at previous hearings:Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9Day 10Day 11Day 12Day 13Day 14