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The Delhi High Court continued to hear the batch of plea's seeking criminalisation of marital rape in the criminal laws of India, presided over by Bench of Justices Hari C Shankar & Rajiv Shakder.

Counsel Rebecca John argued as amicus, on the question whether the Exception would be argued as "unconstitutional" even if it was gender neutral. The manner in which the Section has been framed, the perpetrator is the man.

“There is a qualitative difference existing in sexual relations where parties are married or not married. Where parties are married there is a right to expect sexual relations on both sides. There is no such expectation in non-marital relations,” said Justice Hari Shankar

He further said, “The Legislature has taken a conscious decision that if the parties are married that the husband has the right to expect sex but where they are not married there is no such right, without going into the question of consent here.”

On the point of intelligible differentia Justice Hari Shankar pointed out that,

“Are we to say that there is no intelligible differentia? That's the kind of dialogue, I've been posing it again and again and again, I've not been getting the answer to it. Either we say the argument is hogwash, but if it is not then the provision cannot be coerced.”

To this Senior Advocate John said that in a marriage the husband has a right to conjugal relations. Expectation is not wrong, both sides can have expectations, why only man.

“This is not about one woman suddenly saying one day that I am not in the mood, it is that the expectation does not give rise to the right for a man to have forcible sex with his wife… the striking down of this section will not give rise to a new offence but merely withdraw the existing immunity to a class of men,” she added

The entire landscape of IPC, CrPC, Indian Evidence Act, has been framed with the woman in the centre of the situation - both with respect to procedural and evidentiary aspects, she added.

[Case Title - RIT Foundation vs Union of India]