Senior Advocate Rebecca John told the Delhi High Court on Monday that she had received a lot of hate over the last few days for her stand on the issue of marital rape [RIT Foundation v Union of India].
John is assisting the Delhi High Court as Amicus Curiae in a batch of petitions demanding criminalisation of marital rape.
These petitions have challenged Exception 2 of Section 375 of the Indian Penal Code (IPC) that exempts husbands from being charged under the said section even if they establish sexual relations with their wives without consent.
When the matter was heard today, John told a division bench of Justices Rajiv Shakdher and C Hari Shankar that a lot of people had asked her to recuse herself from the issue because she had openly supported criminalisation of marital rape.
As Justice Shakdher queried as to who asked her to recuse, John responded, “I have received a lot of hate over the last few days.”
Justice Shankar however said that every intelligent person has a view on everything and by that logic, everyone should recuse themselves from hearing every case.
John also addressed the Court on the argument that alternate remedies exist within the law that address the crime of forced non-consensual sex upon married women.
She submitted that though there are several Sections of the IPC like 498A, 304B, 306, 377 as well as Dowry Prohibition Act, DV Act, PCPNDT Act and Sections of the Evidence Act that punish variety of crimes committed against wives but each of these provisions and statutes deal with specific crime and the crime of rape is outside their purview.
“Under the structure of penal code, all offences are distinct although they may have some overlapping issues. Therefore, to argue that a woman has remedy under other acts or sections is not a tenable argument. They exist but for distinct and other offences. Section 375 is separate and there is no reason why 498A can be used as a substitute for 375. It can be used in addition but not as a substitute… My limited argument is that there can be base offences and aggravated. Some elements may be common. To say a wife has efficacious other remedies is the argument I cannot agree with. They exist in very very different spaces,” she said.
Reference was made to the 2018 judgment of Gujarat High Court in Nimeshbhai Bharatbhai Desai v. State of Gujarat.
Quoting the said judgment of a single-judge, John submitted, “The Court held that even though marital rape is not an offence it is a widespread phenomenon that has existed for centuries and the fact that is illegal in 50 Countries.”
She also referred to the different categories of marital rape enumerated in the said judgment adding that the Gujarat High Court has also issued notice in a petition challenging the Constitutional validity of marital rape.
The Senior Advocate relied on the judgments of the Supreme Court in Navtej Singh Johar and State of Tamil Nadu v National South Indian River Interlinking Agriculturist Association regarding the twin test of reasonable classification.
“It is my submission that while you examine the constitutionality of Exception 2. You will invoke the twin test. Therefore, I submit that what is stated in the Navtej Jauhar and the State of Tamil Nadu case should also be taken into consideration… Because there has been a warning given to Constitutional courts that over emphasis on object sometimes makes us forget about the effect of law and it doesn’t do us any service to the equality clauses.”
Finally, on the aspect of India’s international obligations, John cited the Vishaka judgment and Independent Though judgment.
“It is now a settled position of law that international conventions and laws can be read into our domestic law. India’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women also require and provide for Exception 2 to Section 375 to be struck down,” she contended.
As the bench asked her about the sentencing for offences, she argued that all the State does is to incarcerate accused for long periods which does not help the victim.
She, therefore, batted for a sentencing policy.
“All we seem to be doing is putting people into jail for a very long time. This does not help the victim and therefore this is something that needs to be considered. We must have a sentencing policy. We must have a sentencing board.”
Meanwhile, the Central government, yet again informed the Court that it is in consultation with several stakeholders on the issue and that it will need more time to formulate a stand.
Solicitor General Tushar Mehta told the bench that the Court was dealing with the Constitutional validity of a provision which cannot be looked at from a microscopic angle and that the dignity of a woman and family issues are at stake here.
“It would not be possible for the government to respond immediately especially when no danger is being caused to anyone immediately therefore, I would request more time,” he said.
The bench, however, said that there are some people who are facing the abuse, and for them every day matters. Therefore, it cannot tell them that because this has been going on for 100 years there is no urgency.
The Court also reiterated that it will not entertain any intervention or impleadments at this stage.
This came as advocate J Sai Deepak told the Court that he had filed an intervention application on behalf of Madhu Kishwar and some others.
Deepak submitted that the Court is not designed or equipped to deal with the matter.
The Bench said that this matter has been going on since 2015 and it is not sure why people did not intervene all these years.
The hearing will continue on Tuesday when Senior Advocate Raj Kapoor will make his rejoinder submissions for the intervenors who have opposed the petition.
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