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"Forced sexual intercourse does not protect the sanctity, much less the institution, of marriage," RIT Foundation has argued in the Delhi High Court in the case challenging the constitutionality of marital rape exception in Section 375 (2) Indian Penal Code (IPC).

Continuing arguments in the matter before the bench of Justices Rajiv Shakdher and C Hari Shankar was counsel for RIT Foundation, Adv. Karuna Nundy.

Once again relying upon the judgment of the Supreme Court in Independent Thought through the Inversion Test, she argued that the major principles of the judgment were binding upon the present case, one of them being that marriage is not institutional but personal.

Justice C Hari Shankar questioned her on the aspect of whether this is how the inversion test is applied according to Nevada.

Nundy replied in the affirmative, however, Justice Shankar, not convinced, questioned, "Is this how you apply it? That you pick each sentence and put a not into it?"

He pointed out that to his understanding, it is not that each and every sentence is inversed by putting a "not" into it, rather, one has "to first pick out, carefully, a legal proposition and then see its applicability with the rest of the judgment."

Nundy clarified that this was indeed the proposition they were relying on.

The High Court bench also pointed out that as Nundy is relying strongly on the Supreme Court's words in Independent Thought, she must know that the top court says categorically in the judgment that it has "not at all dealt with the marital rape issue of adult women."

Justice Shankar went on to emphasize that since Nundy had said "each word by SC is important", it was also pertinent to note that, "SC also says that nothing in this judgment shall even be treated as an observation, forget ratio."

He asked as to how, in this backdrop, she was arguing that the present bench can use the inversion test to use this judgment as a precedent.

"Is this not violence to the SC's judgment itself?", the bench questioned.

Nundy replied stating that while she appreciated "what is falling from my Lords, but part of the ratio decidendi of this decision has a bearing on S.375 (2) IPC."

"The propositions are such that they have a bearing on the Section," she emphasized and clarified that, "It is our case that Independent Thought is a binding authority in the present case because if the propositions were inversed the conclusion in Independent Thought could not have been reached."

Justice Shakdher asked her, "Do you want to go as far as saying that it is binding here, apropos to what Justice Shankar said? If it was completely binding there would be nothing to rule on, because it is not there is something to rule on. To say that those principles are binding would be one thing but what you're saying is another."

Nundy replied saying that it was her case that both the principles and findings of Independent Thought are binding, however, she agreed on just the principles being binding on being corrected by the bench.

She referred to the SC's comments on artifical distinction between married and unmarried women created by the Section, and how the exception is arbitrary.

On the question of separation of powers, and that the marital rape question must be sent back to the legislature, Nundy relied on the case of Saira Bano to press that where fundamental rights are being infringed, the Courts can intervene.

On the question of Art.14 - intelligible differentia existing between husbands and non-husbands, she said that while there indeed is intelligible differentia between the two, but the rationale nexus between the differentia and object to be achieved also has to be considered.

She argued that this is especially where pre-constitutional statutes are concerned.

"Merely saying there is a logic, some logic, is not sufficient - especially where there is manifest arbitrariness," Nundy contended. 

Nundy went on, "I've thought about it very deeply My Lords, our country and its people have many strengths - one of them being loyalty - and loyalty to family, the divorce rate here is also low." However it was her case that forced sexual intercouse does not protect the sanctity or loyalty in a marriage.

She went on, "Those before me have tried to say that it is the institution of marriage that is being preserved by somehow protecting forced sexual intercourse - but nobody has said, why?"

She further pressed that, "Infact so far as protecting the institution of marriage or family goes, the Court has also said that there are constitutional values of equality, liberty and dignity to be protected as well."

Calling for the exception to be struck down, she said, "This exception is archaic, is manifestly arbitrary and has no place in the present Constitutional order. Protecting the institution of marriage has nothing to with deciding constitutionality of a provision."

She concluded by asking, "Is it a conjugal right of a man to insert his penis into the vagina, urethra or mouth without consent of a woman? Is this the institution of marriage? Is this the love that a marriage beholds?"

She argued that Hindu Marriage Act, Special Marriage Act are independence statutes and that if protection of conjugal rights is taken to be protection of the object (man), then the same does not stand the test of constitutionality "because conjugal rights end where constitutional rights begin."

Justice Hari Shankar replied stating that Nundy’s submission was that the exception to the Section gives licence to husband to have forcible sex with his wife, however, that is not what exception 2 says prima facie.

"We want to hear the Government now. The government has to realise its stand," Justice Shakdher concluded.

Cause Title: RIT Foundation vs Union of India