Trial courts will develop jurisprudence on marital rape once it is criminalised: Colin Gonsalves

Senior Advocate Colin Gonsalves told the Delhi High Court on Friday that it would not have to deal with issues of coercion and consent while striking down the marital rape exception, as jurisprudence on those issues will develop over a period of time through judgments by lower courts [RIT Foundation v Union of India]..“In a matrimonial relationship, there are various shades of coercion and consent. It has been said that there would be complications as to what those shades would be. I am only saying your Lordships don't have to answer these questions. These shades can never be imagined by Constitutional courts. These multitudes of shades of coercion or consent are beyond the imagination of courts or a lawyer, therefore in which case an act will be called a rape and which case it will not constitute rape is to be developed over time,” he argued..Gonsalves made his submissions before a Division Bench of Justices Rajiv Shakdher and C Hari Shankar 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, which effectively provides that charges of rape cannot be attracted against husbands who have non-consensual sexual relations with their wives..He argued that the High Court is only the institution of first instance, which cannot solve all the problems in one go. It only has to address the historic and extreme injustice that has been done to married women.“After this is done, Parliament will be called upon to apply its mind on the issue of definition of coercion and consent. Parliament may also (regrettably) be called upon to decide as to whether, if at all, a lesser punishment ought to be prescribed in the Penal Code for marital rape. They may also decide whether marital rape is compoundable and capable of being settled between the couples. No part of this exercise is to be done in these proceedings.”.Gonsalves submitted that the observations made in the Independent Thought judgment where the Supreme Court read down the same Exception is also applicable and binding to the present proceedings.“The Court dealt with the same Exception and a similar issue. Their observation that they are not creating an offence is applicable to the present proceedings as well. They have said that they are not creating a new offence, but enlarging it, and that observation is totally binding on us.”.The Senior Advocate cited the UK Law Commission report of 1991 to address the issues raised by the intervenors and the respondents ranging from the misuse of law to false complaints, different punishment, impossibility of evidence, conjugal rights and threat of criminal proceeding as a deterrent.He said that the Commission dealt with all these issues in detail and still recommended that the marital rape exception be removed from UK’s statute books..Gonsalves will continue with his arguments on Monday..[Marital Rape case] Committed to protecting rights of every woman: Centre asks Delhi High Court to defer hearing.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 15Day 16Day 17