While calling for the criminalization of marital rape, Senior Advocate Geeta Luthra on Sunday addressed concerns that doing so would result in misuse..She said that wherever there was a law, the possibility of misuse remained. However, that ought not prevent the striking down of a provision, Luthra said..The senior counsel was speaking at a panel discussion organised by the Oxford and Cambridge Society of India, titled Has the bough broken or are we playing the Devil's Advocate?The panelists were Senior Advocates Aman Lekhi, Geeta Luthra and Advocate Chintan Chandrachud. The discussion was moderated by two members of the society's executive committee, Vishnupriya Rajgarhia and Arnav Narain..The discussion was centred around the Delhi High Court's split verdict on the constitutionality of Exception 2 to Section 375 of the Indian Penal Code, which provides that husbands having sex with their wives sans consent does not amount to rape. .Luthra, in no uncertain terms, opined that the Exception needed to be re-examined. "The moment we are saying we have a right to equality and bodily autonomy, the Exception has to be struck down."However, she conceded that striking down the Exception would pave the way for misuse."What we have to strike at is that we have to have a better criminal jurisprudence, forensic evidence, we have to have contemporaneous complaints. We can't have complaints two years down, or five years down when a marriage has gone sour," she said, suggesting solutions to the potential misuse of the striking down of the Exception..Luthra went on to say that one way to protect the accused from false allegations was to maintain anonymity. She endorsed the guidelines issued by the Bombay High Court last year to protect the identities of the parties involved in proceedings under the Sexual Harassment Act and Rules."That's why Justice Gautam Patel in a sexual harassment case said lets not name the person. So, you give anonymity not just to the victim, but also to the accused, and I think that's the way to go.".Advocate Chintan Chandrachud also expressed his views on the judgment, emphasising that it was not for the Court to simply leave such issues to be decided by Parliament. "The view that I take is that courts are under a constitutional obligation to decide issues including the issue of whether this exception violates Articles 14, 15, 19, 21. It's the job of the courts to decide that question.".Chandrachud went on to counter the reasoning that there was an intelligible differentia between married and unmarried women for the purpose of classifying rape."I don't quite see what the difference, in today's day and age, in 2022, is between a couple that has been in a relationship for 10 years but has decided not to get married, but naturally repose a certain degree of trust in one another, as opposed to a couple that has been married for three months," he said. .He also attempted to discourage the growing tendency of avoidance by both the government and the courts while deciding cases. He pointed out that there had been several cases where the courts have essentially batted the issue back to the government. "It is both the role of the courts and the government to interpret the Constitution and to take a stand on these important issues."
While calling for the criminalization of marital rape, Senior Advocate Geeta Luthra on Sunday addressed concerns that doing so would result in misuse..She said that wherever there was a law, the possibility of misuse remained. However, that ought not prevent the striking down of a provision, Luthra said..The senior counsel was speaking at a panel discussion organised by the Oxford and Cambridge Society of India, titled Has the bough broken or are we playing the Devil's Advocate?The panelists were Senior Advocates Aman Lekhi, Geeta Luthra and Advocate Chintan Chandrachud. The discussion was moderated by two members of the society's executive committee, Vishnupriya Rajgarhia and Arnav Narain..The discussion was centred around the Delhi High Court's split verdict on the constitutionality of Exception 2 to Section 375 of the Indian Penal Code, which provides that husbands having sex with their wives sans consent does not amount to rape. .Luthra, in no uncertain terms, opined that the Exception needed to be re-examined. "The moment we are saying we have a right to equality and bodily autonomy, the Exception has to be struck down."However, she conceded that striking down the Exception would pave the way for misuse."What we have to strike at is that we have to have a better criminal jurisprudence, forensic evidence, we have to have contemporaneous complaints. We can't have complaints two years down, or five years down when a marriage has gone sour," she said, suggesting solutions to the potential misuse of the striking down of the Exception..Luthra went on to say that one way to protect the accused from false allegations was to maintain anonymity. She endorsed the guidelines issued by the Bombay High Court last year to protect the identities of the parties involved in proceedings under the Sexual Harassment Act and Rules."That's why Justice Gautam Patel in a sexual harassment case said lets not name the person. So, you give anonymity not just to the victim, but also to the accused, and I think that's the way to go.".Advocate Chintan Chandrachud also expressed his views on the judgment, emphasising that it was not for the Court to simply leave such issues to be decided by Parliament. "The view that I take is that courts are under a constitutional obligation to decide issues including the issue of whether this exception violates Articles 14, 15, 19, 21. It's the job of the courts to decide that question.".Chandrachud went on to counter the reasoning that there was an intelligible differentia between married and unmarried women for the purpose of classifying rape."I don't quite see what the difference, in today's day and age, in 2022, is between a couple that has been in a relationship for 10 years but has decided not to get married, but naturally repose a certain degree of trust in one another, as opposed to a couple that has been married for three months," he said. .He also attempted to discourage the growing tendency of avoidance by both the government and the courts while deciding cases. He pointed out that there had been several cases where the courts have essentially batted the issue back to the government. "It is both the role of the courts and the government to interpret the Constitution and to take a stand on these important issues."
