Marital Rape case: LIVE UPDATES from Supreme Court

Nundy continues reading for Joseph Shine judgment which struck down Section 497 of the IPC and effectively decriminalised adultery after noting that women are viewed as chattel or the property of husbands under this provision.

Nundy reads from the judgment:

" .... In adjudicating on the rights of women, the Court is not taking on a paternalistic role and 'granting' rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink- women are equal citizens of this nation, entitled to the protections of the Constitution ....  It needs no iteration that misogyny and patriarchal notions of sexual control find no place in a constitutional order .... "

Nundy reads from Joseph Shine judgment, in which it was observed that the Supreme Court in the Puttaswamy (right to privacy case) judgment had cautioned against the "dangers of the use of privacy as a veneer for patriarchal domination and abuse of women.”

CJI: What do you have to say to this argument that by striking down the exception, and criminalising acts of non-consensual intercourse within the fold of marriage would have possibility of destabilising the institution of marriage?

Nundy reads a ruling which talks of marriage being a personal institution. Says Joseph Shine judgment also deals with this aspect.

Senior Advocate Nundy reads on hail principle.

CJI: Central government has not abided by the hail principle and says that a woman does not give up her consent upon marriage and that consent is needed.

CJI notes that Centre has said that they have given different remedies for married women, such as in law against domestic violence, cruelty as a ground for rape etc.

Nundy: All of these other provisions all have different ingredients, involve different harms.

Nundy: We are seeking a negative judicial review, striking down an unconstitutional provision. This is not an economic statute.

Nundy: There is nothing about creating an offence because the act is itself an offence.

Justice Pardiwala: You are basically saying - act is an offence already; only the husband is excluded from the fold of it.

Nundy agrees.

CJI: Offence of rape - as it now stands - it is not only penal or vaginal intercourse ... It also about objects manipulated into any part of the body of a woman ... This is the 2013 amendment (to criminal laws), when the Exception 2 provides for exception for sexual intercourse ... It is not just penal-vaginal intercourse, but it will cover objects also ... if a husband inserts an object into the wife - if it was done by any other person, it was rape ... but if by husband, the legislature says it is not rape! If we strike down sexual acts in the exception, then?

Nundy: That is not the heart of the challenge.

Nundy: The range of harm if i am raped by my husband, stranger or separated husband is not different. I may be in a live in relationship and if there is sex without consent, then also it's rape. If I am married and if heinous violent acts are committed on me, then it is not rape? if such an act drives me to suicide then also it attracts charge under Section 498A, IPC (cruelty to married women) .. The crux of the matter is, if the non consensual act of penetration would not be covered.. then...

CJI: How do we summarise this?

Nundy: When we are on creation of a new offence, focus is on offence, an act or thing done; clauses (a) to (d) (of Section 375, IPC) deals with the act (the offence of rape) and the second part deals with willingness or consent. There are three classes of victims or perpetrators ... First is, rapist unrelated to the victim; second is sexual intercourse without consent (with spouse) and the third is, a separated husband. So it is not a new offence.

CJI: So for a separated husband, there is an offence but a lesser degree of punishment and the legislature kind of lowers the penalty to 7 years imprisonment. But they have noted that it is not rape under the folds of marriage.

Hearing resumes.

Senior Advocate Nundy: Under Article 13 of the Constitution, this Court must act to strike down a provision which is unconstitutional.

CJI: You are saying it violates Article 14, Article 19, Article 21.. Parliament intended when it enacted an exception - that when a man engages in a sexual act with wife above 18, it cannot be (construed) as rape.. Then, if we strike it down - then it all falls under the substantive part .. Then you have to tell us, can we create a separate offence or adjudicate the validity of the exception?

Nundy: Criminal law is nothing if it's is not specific.

CJI: Okay we will hear post 2 PM. Please formulate grounds of challenge and let us hear then. Ms. Nundy please wrap up in an hour so that we move to the next counsel.

Court rises for lunch break.

Nundy: Even if the husband is not covered.. then also, I am well since the husband can be charged separately.

CJI: But not for rape .. It will be for abetment only..

CJI: No, Ms Nundy, you may have a point.. He may be covered. But the exception is overbroad since sexual acts between man and wife also covers what is there in point (d). So, what you are saying is that if clause (d) (of Section 375 IPC) is a sexual act and if such act is with third party, then the Exception 2 (marital rape exception) will protect the husband and that is why Exception 2 is constitutionally invalid on the aspect of over-broadness.

Justice Pardiwala: The word "sexual act" has not been defined right? How do you interpret the last part "any other person"? First part, the exception takes care but what about "any other person"?

CJI: It says "or makes her to do with any other person.."

Justice Pardiwala: Suppose a husband forces wife to act as per clause (d) (of Section 375, IPC, which says that it is rape if a man forcefully applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person) - will he (a husband) be covered under Exception 2 (marital rape exception)? No, he will not.

Nundy: He will.

Court: No, that is an incorrect reading.

CJI: If a man causes another person to have sexual intercourse with his wife then it will fall under Exception 2. It will definitely constitute an offence. "By a man" would mean he himself as the husband does it. If the husband causes it to be done.. then the person would be guilty of rape..

Nundy: It will turn on whether the act of abetment is sexual or not.

CJI: So Exception 2 says that anal or vaginal intercourse with wife above 18 is not rape and that is what you are challenging.

Nundy: Yes. Even insertion of objects ...

Nundy: It's a 'yes means yes' (issue). Consent means when the woman expressly gives consent..

CJI: When the wife is below 18, it is rape and when it is above 18 it is not. So that is the difference in BNS and IPC..

Nundy: Yes, it was held by this court since it was unconstitutional..

CJI: So, age of 15 in IPC was read to mean 18 as per the SC judgment. So we have to judge whether any sexual intercourse with a wife above 18 is not rape.. That is the ground..

Nundy: Anal intercourse is exempt under Exception 2 if committed by the husband - non-consensual anal intercourse. Of course, consensual anal intercourse after Navtej (judgment) is not a crime.

Nundy: The matter arose when All India Democratic Women Association approached Delhi High Court along with another foundation. I led the arguments before the Delhi HC.

CJI: Go to the heart of matter.

Nundy: Section 375, Exception 2 of IPC (exception if alleged act of rape is between spouses) was challenged. It is para material to Section 63 of the Bharatiya Nyay Sanhita. Both provisions and the tiny difference is laid down before the Bench.

CJI: The core issue is of constitutional validity. Ms. Jaising your argument is that even if marital rape exception is valid, even then charges can be framed. So, first we have to apply our mind to the constitutional validity and then we can get to your arguments, Ms Jaising.

Senior Advocate Indira Jaising: There is no need to link it with restitution of conjugal rights.

CJI: Ok, we will not.

CJI: It is a constitutional question. There are two judgments before us and we have to decide.

A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices JB Pardiwala and Manoj Misra is hearing the matter.

Senior Advocate Karuna Nundy: I am appearing in the civil appeals.

CJI: Are you appearing before us in the appeal against Delhi High Court verdict?

Nundy: Yes, I am appearing.