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The Delhi Hgh 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.

Senior Counsel Rebacca John again read out the Criminal Law (Amendment) Act, 1983 amending inter alia S.375, 376. She also added, the objects and reasons of Criminal Law (Amendment) Act, 2013 along with the position the law holds in todays time.

"S. 375 has two elements - one is descriptive, the other is conditional. Consent is implicit in Exception 1," she added.

John further argued that given the two aspects, if a man committing the act on his wife, without her consent, is not treated as rape, this will be violent on the preceding section.

On the questions whether there was an expectation of sex in conjugal relations, and whether that translates into a right, John replied,

"There may be expectations, yes, if agreed upon. Unilateral too, and if it is not fulfilled one may resort to civil remedies. However, if the expectation translates into an act of violence, that should be treated as an offence.Not every man, not every act in the marriage is an offence however if the act is in express disregard of the woman's consent, that should be treated as an offence."

She further added, "Refusal, non-consent, "No" of your partner has to be respected. We are not talking of minor offences but serious ones. Rape by its very nature is a serious offence."

"Does the law say that a woman on whom sexual violence has been committed without her consent has no recourse? As I see it the exception does not say so," stated the Bench. 

John refered to Supreme Court Judgment in Navtej Singh Johar and pointed out that S.497 was based on the understanding that marriage submerges the identity of a woman, and that S.497 suffers from manifest arbitrariness.

She further mentioned the Joseph Shine judgment where it was observed that, "the idea that a woman, by marriage, consents in advance to sexual relations with her husband...was offensive to liberty and dignity."

The Bench finallly asked whether S.375 was gender neutral,  

"The exception said if two parties are married then there was no rape, would one still say it is unconstitutional?"

In the hearing today, "Purush Aayog" sought intervention in the matter. To this the Bench replied, “these petitions have been pending for so many years. We cannot hear the whole world, if you want please give suggestions to the concerned advocate.”

The bench refused to allow intervention applications in the part-heard ongoing case against marital rape.

Cause Title: Rit Foundation vs Union of India