[Marital Rape] Woman’s consent central to immunity provided to husbands under Section 375: Rebecca John

In the marital rape case, Senior Advocate Rebecca John told the Delhi High Court on Wednesday that a woman’s consent was essential to the immunity provided to husbands through Exception 2 of Section 375 of Indian Penal Code [RIT Foundation v Union of India]..John argued that the definition of rape in Section 375 has two components. The first part (from a-d) is descriptive and is followed by the second part (firstly to seventhly) which gives the circumstances. Therefore, acts enumerated in 'a to d' will not be rape if they are not met with the conditions in the second part, where consent is central.“Section 375 is an amalgamation of the descriptive act and the conditions mentioned. One cannot survive without the other. And at the centre of the provision is the issue of consent...Sexual acts without a woman's consent are prohibited, because this is perhaps the only section in IPC where a woman's consent is central to making an act an offence... If a woman does not consent, that becomes the fundamental foundational basis of invoking Section 375 and we cannot wish it away,” she argued..John, who is Amicus Curiae in a batch of petitions challenging the exception provided in Section 375 of the Indian Penal Code which exempts non-consensual sex between husband and wife from the ambit of rape, made her submissions before a Division Bench of Justices Rajiv Shakdher and C Hari Shankar.The petitions demand the criminalisation of marital rape, which is currently not an offence by way of the said exception..“In a marriage, in normal course of events, when husband and wife are cohabiting together, it is consensual, it is not rape. All the descriptive elements of a to d may be satisfied, but it is not rape. The problem would arise only and only when the second part of 375 is brought into play… In a normal, ordinary marital relationship, founded on love friendship, care, comfort as a socio-economic unit, it is not rape. But if we minus the second part of rape, Exception 2 will become a complete absurdity as would Exception 1,” John argued..John took the Court through the legislative history of the Section as well as how the exception came into being. She referred to the change in the age bar that has developed over the years related to the Section. It was submitted that while no age restriction existed in the 1837 draft, a bar of 10 years was brought to the Section in 1860, when the Code was first accepted. This was ultimately raised to 18 years by the Supreme Court judgment in Independent Thought, where it criminalised rape of minor wives.She submitted that marriage is the foundational basis of the exception in question.“If I were to look at Exception 2 of Section 375, the foundational basis of that is the factum of marriage. Once there is a valid marriage, the Exception does not need to be pleaded in any way. Therefore, as it stands today, once a marriage is established, no prosecution can be authorised.”John referred to the Sexual Offences (Amendment) Act,1976 of the United Kingdom, which effectively condoned marital rape. The exception was finally struck down by the House of Lords in 1991.“It was held that the having sex with any woman without her consent is unjustifiable…The House of Lords said that striking down the exception was not creation of a new offence, but removal of a common law fiction," John submitted..The High Court made it clear on Wednesday that it will not entertain any intervention or applications in the matter at this stage. The Bench therefore asked Advocate Lalit Kumar, who had filed an application on behalf of a Jaipur-based NGO opposing the petitions, to give his suggestions to Advocate Raj Kapoor who is already appearing for an intervenor in the petitions.Another group by the name of Purush Aayog claimed that it has filed an intervention application on the issue before the Delhi High Court. The application, however, is yet to come up on record..The Court will hear further arguments on Thursday, when John will continue with her submissions..[Marital Rape] Status of marriage not sufficient reason to deny wife right to prosecute husband: Amicus Rajshekhar Rao