Amicus Curiae in the marital rape case, Senior Advocate Rajshekhar Rao asked the Delhi High Court if it is reasonable, just and fair in today’s day and age to deny the wife a right to call rape a rape [RIT Foundation v Union of India].
“In today’s day and age can anyone argue that it is reasonable, just and fair that a wife should be denied the ability to call it rape. Why should she be called upon to take recourse of Section 498A etc,” he said.
Rao was making his submissions before the Court in a batch of petitions challenging the Constitutionality of the exception provided in Section 375 of the Indian Penal Code which exempts non-consensual sex which husband has with wife, from the ambit of rape.
The petitions have demanded criminalisation of marital rape which is currently not an offence by way of the said exception.
A Bench of Justices Rajiv Shakdher and C Hari Shankar has been hearing these petitions.
Interestingly, Rao during the hearing today played a video of the Thames Valley Police where making a cup of tea is compared to the concept of consent.
Rao submitted that though Section 375 is predicated on the issue of consent, or the lack of consent, the indirect effect of the exception has been to obliterate the consent altogether.
“If a man had raped (his fiancé) immediately before marriage, law would permit her to prosecute him for rape. Should that right be taken away from her just because she married him? By denying the opportunity for a woman to prosecute a man, even her husband, for rape has the practical effect of obliterating her consent altogether.”
He stated that under the law no one can compel a woman to have sex, and that this is the principle behind Section 375 except for the exception.
“A woman has the individual choice which has been legally recognised… The question one needs to ask themselves is, are the wives expected to succumb to the will of the husbands every time. The law says no one can compel a woman to make love. This is the principle behind 375, except the exception… The law says, Sorry! Young Woman or Lady but this is not rape. It says I will assist you but not allow you to call it what it is,” he said.
Addressing the role of the legislature in keeping the provision on the statute books for several decades despite Independence he argued,
“The exception condescends. What is particularly insulting is that this condescension comes from the legislature. They had the option to say that this law has been since pre-independence therefore will not apply post-independence, but they did not say this… This is where Courts have to take action.”
He further added that there is no doubt that that husband does have rights but “the question is does he have the right to escape the rigors of law and say that it is his birth right or something that he is entitled to do?”
The Court will now continue with the hearing on Monday when Rao is likely to conclude his submissions.
The Central government’s arguments are likely to begin on Tuesday which will be followed by Senior Advocate Rebecca John, another Amicus Curiae in the case, who will argue on aspects of criminal law.
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