Marital rape exception under Section 375 IPC places institution of marriage over individuals: Karuna Nundy

The marital rape exception under Section 375 of the Indian Penal Code (IPC) is unconstitutional because it gives primacy to the institution of marriage over the individuals in the marriage, advocate Karuna Nundy told the Delhi High Court on Wednesday [RIT Foundation v Union of India]..Nundy was making her rebuttal submissions before a Division Bench of Justices Rajiv Shakdher and C Hari Shankar in a batch of petitions demanding the criminalisation of marital rape.The petitions challenge the Exception provided under Section 375 which exempts non-consensual sex between husband and wife from the ambit of rape..“To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution," Nundy submitted while quoting the Joseph Shine judgment of the Supreme Court..Nundy argued that an Exception provided in a statute on criminal law cannot subsume the object of the main provision and that is exactly what is being done by Exception 2 to Section 375 of the IPC.“The alleged object of the Exception is protection of the institution. Our submission is that by doing so, it will nullify the main provision which is protection of women from rape, and this is impermissible. The object of rape laws is to ensure that women are not raped. Retaining the Exception will nullify the very object of rape law,” she said.She added,“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… The perceived object of the Exception nullifies the object of main provision of 375, therefore it should be struck down.”.On the issue of creation of a new offence if the Exception were to be struck down, Nundy argued that the offence of rape pivots on the act or the omission, and not on the offender per se.“It does take the husbands of adult wives out of the offence as defined in the main law. It grants immunity to husbands and that immunity is provided in the law given by colonial masters. Therefore, if the Exception were to be struck down, it would not be a creation of offence, only a new class of people will be brought under it. The offence already exists. This is the precise reason why the Supreme Court said in Independent Thought case that they were not creating any offence…If my lords were to strike down Exception 2, that would merely introduce a new class of offender. That is all husbands who have had forced sex with their wives.”She argued that it would not be the first time that the courts have added a new class of offender, since it has been done before by the Supreme Court as well as the High Courts.“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. According to us, it is impermissible since it minimizes the trauma of rape. It must be addressed specifically. The label of offence must reflect the nature of the offence.”.Referring to Article 15 of the Constitution, Nundy said that it was a special provision as when there is an ex-facie violation, the burden to prove constitutionality shifts to the government.“The burden is on them to prove and demonstrate that not calling a forced intercourse as rape serves the State interest and that it is proportionate in nature to serve that interest. Our submission is that there is no compelling State interest in protecting the husbands or the institution here. And even if there were any such State interests, then it is in no way proportionate.”She added that the powers of the High Court under Article 226 are not discretionary and that when a provision is found to be unconstitutional, it is a court’s duty to act.“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.”.Nundy also addressed the Court on the stand taken by the Union government through its affidavit and written submissions. She said that there seemed to be an assertion that if there is a poor or illiterate woman, then her rape should not be criminalised.She was assisted by advocates Raghav Awasthi, Rahul Narayan, Ruchira Goel, Nitish Chaudhary, Ragini Nagpal, Utsav Mukherjee, Muskan Tibrewala and her interns Rhea Borkotaky, Sanskriti Shivangi, Priyal Singh and Rishika Rishabh. .The Court will continue hearing arguments on Thursday when Senior Advocate Colin Gonsalves will begin his rebuttal submissions for the petitioners..Criminalising marital rape will lead to creation of new offence: Justice C Hari Shankar expresses prima facie view.Here are the summaries of what happened at previous hearings:Day 1Day 2Day 3Day 4Day 5Day 6Day 7Day 8Day 9Day 10Day 11Day 12Day 13Day 14Day 15Day 16