Marital Rape case: LIVE UPDATES from Delhi High Court

The Delhi High will continue hearing a batch of petitions demanding the criminalisation of marital rape.The matter is being heard by a Division Bench of the Delhi High Court comprising Justices Rajiv Shakdher and C Hari Shankar.The petitions challenge Exception 2 to Section 375 of the Indian Penal Code (IPC), which exempts non-consensual sex between husband and wife from the ambit of rape.Yesterday, the Central government by way of an affidavit asked the Delhi High Court to defer the hearing for a ‘stipulated time’ within which it will “conduct an effective consultative process“, after which it would be in a better position to assist the Court.Live updates from the hearing below..Senior Advocate Colin Gonsalves starts with his submissions..Sr Adv Colin Gonsalves: I will not take much time. (Says he has already filed his written submissions.).Court is waiting for Sr Adv Gonsalves to share his submissions on screen..Sr Adv Gonsalves says he will start with Law Commission of UK report..Sr Adv Gonsalves: This is how law commission in UK chose to reopen the issue of rape in marriage..Sr Adv Gonsalves reads the report..Sr Adv Gonsalves now refers to paragraph dealing with restoration of conjugal rights and rights of husbands.."The duty to cohabit cannot be enforced against the other spouse, either judicially or by extra-judicial means. Nor is the right to sexual intercourse enforceable through Court," Sr Adv Gonsalves reads..Sr Adv Gonsalves now takes the Court through the comments on right to have sex with one's wife..Sr Adv Gonsalves: Even if the refusal is wilful, the husband is not entitled to use more than 'tact' persuasion and encouragement to overcome it..Sr Adv Gonsalves: The rights of the married and non-married women are in this respect the same, those rights are protected to be in the same way unless there are cogent reasons of policy for taking a different course.."It is well recognized that unwanted intercourse can be abhorrent and repellent for women," Sr Adv Gonsalves quotes from the report..Sr Adv Gonsalves: The commission has not identified forceful intercourse as a right at all. Such act would be criminal just by the lack of consent..Sr Adv Gonsalves now addresses the Court on the issue raised by the defending counsels that the matrimonial remedies are enough to deal with issue of marital rape..He again reads from the report. Sr Adv Gonsalves: A criminal deterrent is necessary..Sr Adv Gonsalves: The remedies of divorce or separation are clearly of no deterrent effect.."Family law does not aim to set standards of socially acceptable behaviour by holding out the threat of punishment for those who do not conform to those standards," Sr Adv Gonsalves quotes..Sr Adv Gonsalves now addresses on the issue of difficulty of proof in marital rape cases.."We are unaware of any evidence to suggest that there would be significantly more problems of proof in relation to rape than in relation to other crimes within marriage," Sr Adv Gonsalves reads from the report.."These issues do not in fact appear to be different in kind from those arising in many crimes, sexual and on-sexual where the case turns on the words of the accused against that of the alleged victim."."Even in cases where the only evidence was that of the wife, courts would be capable of identifying the testimony," Sr Adv Gonsalves further quotes..Sr Adv Gonsalves: Sexual intercourse, whether consensual or non-consensual, takes place in private and evidence is limited to that of the parties and is much likely to depend on balance of probability.."We are not aware of any reason for thinking that such problems would be more acute in a married relationship that in any other," Sr Adv Gonsalves reads..Sr Adv Gonsalves now addresses the Court on the issue of false accusation.."We think that it is necessary to be extremely cautious about many any such assumption in relation to allegation of rape," the report reads..Sr Adv Gonsalves now addressed the Court on the issue of marital rape law not being used and whether wives would level false allegations..Sr Adv Gonsalves: There is a brilliant couple of paragraphs on false complaint. He now refers to Conclusions of the report..The commission recommended removing the marital rape exception..The commission said it has strong objection to arguments that non-consensual intercourse in married relationship should only be taken cognisance of when it is accompanies by any other form of violence..Possibility of violent and non-violent rape is also rejected by the commission..Sr Adv Gonsalves: We addressed these aspects because certain questions arose that rape and marital rape are different. That proof is more difficult in marital rape. Should marital rape have injuries as necessary component and that marital rape is somehow less serious... The UK commission dealt with all these aspects and said that right to have sex with your spouse is not a right at all..Sr Adv Gonsalves now refers to scenario where husband demands sex, husband threatens to leave and wife relents..Sr Adv Gonsalves: Scenario 2. After having regular sex wife for some reason declines to have sex with husband..Sr Adv Gonsalves: These questions are right and complex. Once the Court strikes down the exception and the trial court begins to look at these cases and deliver judgment on a wide spectrum of facts. Facts as to coercion and to facts as consent then a variety of judgment would come..Sr Adv Gonsalves: The judgments would show what constitutes consent, not in academic sense, but in real sense. Take for example the Scenario 1..Sr Adv Gonsalves: We should not get into this excellent question. No Court can give answers to these. The answers would come with time..Justice Shakdher points that this how the concept of abetment to suicide has developed: In factual scenarios these issues do pose problems. So, yeah....Sr Adv Gonsalves now submits that once the declaration of unconstitutionality is made, the task of High Court is done. The trial court will then deal with the dispute and law will develop..Sr Adv Gonsalves: The Constitutional Courts are only concerned with constitutionality of the law..Sr Adv Gonsalves: The Constitutional Court cannot desist from dealing with constitutionality of the exception on the ground that it would be nigh impossible for the woman to prove marital rape since it sometimes happens in confines of the household and in private..Sr Adv Gonsalves: If I have sex with wife again and again, yet there is no right to expect sex. This is true of a sex worker as well..Sr Adv Gonsalves: It is has been argued that there is an expectation of sex and it gives husband a greater degree of laxity. The Supreme Court in Pankaj Chaudhary case, while deciding the right of a sex worker to refuse sex, had held that she has the right to refuse to submit to sexual intercourse to anyone. The judgment of the High Court reversing the conviction was set aside here..Sr Adv Gonsalves: There were several arguments raised against striking down the exception. But you do not have to deal with those issues at all. The High Court is only the institution of first instance. It cannot solve all the problems in one go..Sr Adv Gonsalves: It only has to address the historic and extreme injustice that has been done to married woman. After this is done, Parliament will be called upon to apply its mind on the issue of definition of coercion and consent..Sr Adv Gonsalves: The 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..Sr Adv Gonsalves: 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..Justice Shankar: I find your argument a bit astonishing. Ms Nundy and Ms John argued that this provision has to be struck down on the ground of consent. You are saying strike it down, and the Court will then develop a jurisprudence..Justice Shankar: You are saying we should not see what is coercion or consent, but strike it down. Is that something to a Constitutional Court to do? I don't think we can take that approach when dealing with this issue. This would mean we close our eyes complete to all the issues..Justice Shankar: I don't think even Ms Nundy took this approach. Sr Adv Gonsalves: What I am saying is how will consent and coercion work out in the law will be taken care of by lower courts..Sr Adv Gonsalves: In matrimony, there are various shade of coercion and consent. It has been said there would be complication 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..Sr Adv Gonsalves: I am only saying they may be right they may be wrong that there are multitude shades of coercion or consent, but it is beyond the imagination of Court or a lawyer and in which case it is said to be rape and in which case it will not be rape..Sr Adv Gonsalves: You can make out from the Government's affidavit that it is a troubling issue. We should tell them to be patient..Sr Adv Gonsalves: Parliament will decide whether it can be compounded. It will again come before you. The law will again be challenged... I am sorry if I wasn't clear..Solicitor General Tushar Mehta points that Gonsalves is referring to Centre's affidavit, but he is not sure which affidavit is being referred to..Sr Adv Gonsalves now addresses the Court on issue of misuse of law..Sr Adv Gonsalves: It is for the legislature to find out ways how the makers of false and frivolous complaints or allegations can be appropriately dealt with..Sr Adv Gonsalves: Till then the Courts have to take care of the situation within the existing framework..Sr Adv Gonsalves now refers to Supreme Court judgment in Sushil Kumar Sharma v UOI..The Court has commented on the statutes which can be misused..Sr Adv Gonsalves: They say the law may be misused, but the law does not become unconstitutional. The legislature and the judiciary has to find a way out on these situations..Sr Adv Gonsalves now refers to the Independent Thought judgment and argues that it is binding..Sr Adv Gonsalves: Here the words used are less extreme than "not to be used as precedent".Gonsalves now reads from the judgment..Sr Adv Gonsalves is now referring to Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana..Sr Adv Gonsalves: The prohibition in Independent Thought is not there. They have said their observation should taken as the fact that they have not decided an issue which was not before them. Many of those observations are directly applicable to us..Sr Adv Gonsalves: That observation is that they are not creating a new offence. They have dealt with the same section. They have said that they are not creating a new offence, but enlarging it and that observation is totally binding on us..Bench: We will continue on Tuesday..Justice Shakdher asks Sr Adv Gonsalves as to how much time he will take.Bench: We will try Monday at 3:45..Solicitor General Tushar Mehta points out that he has sent a mail asking the Court to defer the hearing. SG: We will address the affidavit on Monday. Bench: Okay.

Marital Rape case: LIVE UPDATES from Delhi High Court

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