The legal exception pertaining to marital rape is archaic and has no place in a just constitutional order, lawyer Karuna Nundy told the Delhi High Court on Tuesday, Live Law reported.

The High Court is hearing a batch of petitions to remove Exception 2 in the rape law under Section 375 of the Indian Penal Code. The exception states that forcible sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.

Nundy made the statement on Tuesday while representing two petitioners, the RIT Foundation and the All India Democratic Women’s Association. She said that the current law on marital rape is “ripe” for being struck down “as being manifestly arbitrary”.

The advocate said that laws that assume a notion of marriage that is unequal are legally untenable. “The institution of marriage is not desecrated by criminalising forced sexual intercourse; to retain a law that condones at any level forced sexual intercourse within the institution, in fact, desacralises it,” she argued.

Nundy contended that conjugal rights between a husband and wife end where bodily integrity begins, according to Bar and Bench. She added that conjugal rights can only extend to cohabitation as no wife gives permanent consent to sexual intercourse.

“No wife is saying that when I am ill or exhausted or menstruating that I hereby and forever consent to sexual intercourse,” the lawyer said. “And that if you have intercourse with me, that will be something else, a lesser offence or not called a rape.”

The court directed the Union government to make its stand clear on the matter. Additional Solicitor General Chetan Sharma, representing the Centre, said that the government is re-looking at affidavits filed by it earlier on marital rape. “These are affidavits quite back in point in time in 2015-17,” Sharma said, according to Live Law.

The case will be heard next on Thursday.

Also read:

  1. Explainer: Why is marital rape not a crime in India – and can the courts make it one?
  2. Marital rape hearing puts spotlight on other laws that reinforce patriarchal nature of marriage

Previous hearings of the case

In a written submission to the High Court on January 12, the Centre had stated that criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”.

“It will be difficult to determine as to when consent was withdrawn by the married woman,” the government added. “Most of the circumstantial and corroborative evidence will become futile in case of marital rape.”

India remains one of the few countries in the world that does not treat non-consensual sex within marriage as rape.

At an hearing on January 12, the Delhi government, which is also a party to the petitions, had submitted to the court that the non-criminalisation of marital rape does not compel a woman to have sexual intercourse with her husband.

The Delhi government had said that a woman can register cases under Sections 377 (unnatural sexual intercourse), 498A and 326 (causing grievous hurt by using dangerous weapons) of the Indian Penal Code.