New Delhi [India], October 17 (ANI): During the hearing of Marital Rape case in the Supreme Court on Thursday, a petitioner questioned the Exception 2 of Section 375 of Indian Penal Code, which protects husband from being prosecuted in case of forceful sexual intercourse with his wife, and termed it a matter of ‘People versus Patriarchy’.
Senior Advocate Karuna Nundy appearing for petitioner All India Democratic Women’s Association (AIDWA), said, “currently my right to say no is equivalent to my right to say free and joyful yes.”
The top court further asked whether the husband should take that ‘no’ or file for divorce instead.
Senior Advocate Karuna Nundy said the husband can “wait for the next day, try to be more charming and talk to her”. She further argued that the matter is ‘people versus patriarchy’, and this is the reason behind them approaching the court.
The arguments by the senior advocate came when the top court on Thursday began hearing the petitions challenging the Exception 2 of Section 375 of IPC which protects husband from prosecution in case of forceful sexual intercourse with his wife.
A bench of Chief Justice DY Chandrachud, and Justices JB Pardiwala and Manoj Misra is hearing the batch of petition. As the hearing remained inconclusive today, the matter will be heard on next Tuesday.
Senior Advocate Karuna Nundy argued that rape is already an offence, and only the husband is excluded from its ambit and said that declaring the exception as unconstitutional may not create separate offence.
The court said that it will first examine constitutional validity of the exception clause and then hear whether retention of marital rape exception in the new criminal law Bharatiya Nyay Sanhita stay or not. The top court posed various question to petitioners including how they are going to counter its impact on possibility of de-stabilizing the marriage. The top court also sought to know whether striking down the exception will create a new offence.
Senior Advocate Nundy replied that the offence exists and it is not a new offence as she explained the Section 375 IPC and said that there are three classes of victims, one is rapist unrelated to victim, another sexual intercourse without consent and the third is a separated husband. In a live-in relationship, sex without consent will amount to rape but if someone is married and any heinous violent acts are committed upon the female then it is not rape.
Responding to queries related to destabilize marital rape, Nundy cited the top court ruling and said that the privacy cannot be used to abuse women.
She further argued that the case in hand is not the men versus women but people versus patriarchy case. She also pointed out that there is a men’s rights group connected to the matter.
The Centre recently filed affidavit in the matter relating to marital rape and said that striking down the Exception 2 of Section 375 of IPC on the ground of its constitutional validity will have a far-reaching effect on the institution of marriage and needs a comprehensive approach rather than a strictly legal approach.
Centre stressed that it should not be interfered unless a separate suitably tailored penal remedy is provided by the legislature.
Centre affidavit was filed in response to the petitions challenging the the constitutional validity of the Exception 2 to Section 375 of Indian Penal Code which decriminalises rape by a husband on his wife. 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.
Centre has informed the Supreme Court that criminalisation of marital rape may severely impact the conjugal relationship and may lead to serious disturbances in the institution of marriage.
“In the fast growing and ever changing social and family structure, misuse of the amended provisions can also not be ruled out, as it would be difficult and challenging for a person to prove whether consent was there or not,” the Centre said in the affidavit.
Centre, in affidavit, informed the SC that matter relating to marital rape will have very far-reaching socio-legal implications in the country and therefore, needs a comprehensive approach rather than a strictly legal approach.
It further explained the Section 375 covers within its ambit all acts, from single act of unwilling sex to gross perversion and said that Section 375 is a well thought of provision, which tries to cover every act of sexual abuse by a man on a woman within its four walls.
Various petitions were filed in the Supreme Court challenging the constitutional validity of the exception to marital rape issue.
One petition is against Karnataka HC judgement, which declined to quash the charge of rape against a man accused of raping and keeping his wife as a sex slave.
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.
Earlier All India Democratic Women’s Association (AIDWA) among others has moved the Supreme Court against Delhi High Court’s split verdict on issue relating to criminalising marital rape matter.
Two- judges Bench of Delhi HC on May 12 2022 pronounced split verdict on issue relating to criminalising marital rape. Delhi HC’s Judge Justice Rajiv Shakdher rules in favour of criminalising while Justice Hari Shankar disagreed with the opinion and held that Exception 2 to Section 375 does not violate the Constitution as it is based on intelligible differences.
AIDWA, in its plea had said that the exception allowed to marital rape is destructive and in opposition to the object of rape laws, which clearly ban sexual activity sans consent. It places the privacy of a marriage at a pedestal above the rights of the woman in the marriage, the plea said.
The petition said that Marital Rape Exception is in violation of Articles 14, 19(1)(a) and 21 of the Constitution. (ANI)
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