The exception pertaining to marital rape is unconstitutional as it gives primacy to the institution of marriage over the individuals in the marriage, advocate Karuna Nundy told the Delhi High Court on Wednesday, reported Bar and Bench.
“To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution,” said Nundy, who is representing two petitioners, the RIT Foundation and the All India Democratic Women’s Association.
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.
During Wednesday’s hearing, Nundy argued that the purpose of the exception in the rape law is the protect the institution of marriage. She contended that this nullifies the aim of the main provision of Section 375, which is protecting women from rape.
“The general rule is when an exception is against the statute, the statute’s general provisions cannot be invalidated unless it appears that the legislature would not have enacted the former without the latter,” she said. “The perceived object of the exception nullifies the object of main provision of [Section] 375, therefore it should be struck down.”
The advocate also submitted that the exception curtails a woman’s freedom to sexual expression, reported PTI.
“A woman is not allowed to say whether or not she wants to have sex with her husband,” she told the High Court. “Not only does it not recognise the right of a married woman to say no, it takes away her ability to say a joyful yes. A wife’s consent and desire are reduced to a nullity.”
Nundy said that striking down the exception would not create a new offence but only create a new class of offenders that are “all husbands who have had forced sex with their wives”.
“It has been argued repeatedly that Exception 2 makes a sexual act within marriage not rape and that there are several things for the rescue of wives,” she said. “According to us, it is impermissible since it minimises the trauma of rape. It must be addressed specifically. The label of offence must reflect the nature of the offence.”
The advocate also said that the powers of the High Court under Article 226 are not discretionary and it was court’s duty to act when when a provision is found to be unconstitutional. The Article describes the power of High Courts to issue orders.
“There is a clear mandate for my lords to act to bring justice to women who have been subjected to forced intercourse and the tiny minority who wish to go to the courts for the recognition that the harm they have suffered is not molestation or physical abuse but rape,” she told the High Court.
On the arguments of respondents and intervenors that the court should not strike down the exception as doing so would lead to a high mandatory minimum sentence for husbands, Nundy contended that the quantum of sentence cannot be a factor in determining the constitutionality of the exception, reported Live Law.
“Existence of high mandatory minimum cannot be reason for the court to not strike down an act which is really unconstitutional,” Nundy said.
She also argued against the Centre’s submission that social conditions prevalent in India are needed to be taken into account before criminalising marital rape and that just because western countries have done it does not mean India should also blindly follow.
“I wonder whether it was a stray comment but I wonder it’s not because same assertion has been made in other pleadings,” Nundy said. “Basically saying that if you’re a poor or illiterate women then marital rape shouldn’t be criminalised. This is the Union of India, this is the government and this is why we are before the court.”
The case will be heard next on Thursday.