Senior advocate Rebecca John on Wednesday told the Delhi High Court that a consent was an underlying condition to immunity from rape a husband gets under Exception 2 of Section 375 of Indian Penal Code, reported Live Law.

Exception 2 to Section 375 of the Indian Penal Code, which defines rape, states that sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.

A bench of Justices Rajiv Shakdher and C Hari Shankar is hearing a group of petitions challenging the legal provision that exempts sexual intercourse by a man with his wife from the purview of rape.

During the hearing, John, who is one of the amicus curiae in the case, noted that Section 375 has two exceptions. The first is for medical procedures on a woman’s body. She said that the women’s consent is necessary for medical interventions.

Similarly, the second exception is also based on consent, she said. John argued that it will be absurd if consent is negated from the second exception.

The amicus curiae also submitted before the High Court that the definition of rape in Section 375 has two components, reported Bar and Bench. She said that the first part (from a-d) is descriptive of sexual acts and the second part (firstly to seventhly) lists the circumstances that lead to rape.

John argued that acts explained in the first section will not be rape if they are not met with the conditions in the second part, where consent is central.

“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,” she said. “If a woman does not consent, that becomes the fundamental foundational basis of invoking Section 375 and we cannot wish it away.”

John also referred to the United Kingdom’s Sexual Offences (Amendment) Act,1976, that stated that the “husband cannot be guilty of a rape committed by himself upon his lawful wife’. In 1991, the House of Lords had struck down the exception and criminalised marital rape.

“It was held that the having sex with any woman without her consent is unjustifiable,” she told the High Court. “The House of Lords said that striking down the exception was not creation of a new offence, but removal of a common law fiction.”

The High Court will continue to hear the case on Thursday.

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Earlier hearings

Two non-government organisations, the All India Democratic Women’s Association and RIT Foundation, and two individuals have filed petitions in the Delhi High Court seeking to remove the exception.

At a hearing on the matter on January 12, the Delhi government, which is a party in the case, had submitted to the court that non-criminalisation of marital rape does not compel a woman to have sexual intercourse with her husband. Senior counsel Nandita Rao, representing the Delhi government, said that the option of divorce and other criminal provisions remained open to the women.

In an oral observation at the hearing, Justice Rajiv Shakdher of the Delhi High Court said that the nature of the relationship cannot place it on a different pedestal.

“...merely because you are married, it is not good enough to say it is not an offence,” he noted.

At another hearing on January 14, the court observed that a sex worker has the right to say no to a client, and questioned how a married woman can be denied that right with respect to her husband. This was after amicus curiae (friend of the court) Rajshekhar Rao had submitted that every other woman, including a sex worker, has the right to accuse a man of rape.

The amicus curiae also told the court that marital rape inherently violates Article 21 of the Constitution, which guarantees protection of life and personal liberty of every citizen.

Even as marital rape has not been criminalised yet, multiple courts have in the past passed verdicts to protect the rights of women.

On August 6, the Kerala High Court held that marital rape was a valid reason to seek divorce. In November 2017, the Gujarat High Court had said that marital rape is a “disgraceful offence” and not criminalising it has made “a large population of women” suffer.