The Delhi High Court on Wednesday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age.
A bench of Justices Rajiv Shakdher and C. Hari Shankar is hearing petitions filed by two NGOs, RIT Foundation and All India Democratic Women’s Association, as well as two individuals, Amit Lakhani and Ritwik Bisaria (Men Welfare Trust) challenging the constitutional validity of the second exception to Section 375 of the IPC.
While senior advocate Rajshekhar Rao is assisting the court as amicus in the matter, the Delhi High Court on Wednesday said that senior advocate Rebecca John will also be assisting the judges.
John has been added at the final stage of arguments as Amicus Curiae.
Who Is Amicus Curiae?
The word Amicus Curiae literally means a friend of the court.
As per the definition in Merriam Webster amicus Curiae is defined as – One (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.
A member of the bar or other stander by, who informs the Court when doubtful or mistaken of any fact or decided case.
Amicus curiae refers to a person who volunteers to help the court in deciding some matters however it is the discretion of the court whether to accept it or not, the information provided by the amicus curiae could be in the form of brief, testimony which has not been asked by any member of the case, or a learned treatise on the matter before the court
2015 Article By Rebecca John On Marital Rape
In 2015, Rebecca had authored an article in India Today strongly advocating in favour of criminalising marital rape. An excerpt from her article reads as:
The term ‘marital rape’ is gaining rapid public attention today, although its inclusion as a criminal offence, has been a long standing demand of feminists and activists. That, to me, heralds an important new phase in the nation’s discourse on gender equality. To men like the senior lawyer I quoted, it is a moment of noise and confusion. To women like me, it is a moment of hope and truth.
Adding further on the Misuse of Laws debate, Rebecca quoted,
Women carry with them the stinging allegation of misusing all the laws that have been enacted in their favour, be it the anti-dowry provisions or the domestic violence laws or the newly enacted rape laws. In the debate on marital rape, there is no discussion on the need and requirement for its inclusion as an offence but there is much discussion on the potential for its misuse.
Although most marriages take place in India after dowry requirements are fulfilled-on which the status of a wife and a daughter-in-law depend-Section 498-A of the Indian Penal Code and the provisions of the Dowry Prohibition Act have low conviction rates.
Some argue that most of these complaints are false and entire families have been destroyed through their misuse. That is a gross exaggeration and there is no evidence backing that sweeping allegation. Even so, surely the judicial system should have the capacity to deal with any ‘misuse’? If judges are unable to separate truth from falsehood, the grain from the chaff, is it not a failure of the justice system and is it not unfair to tar all women who speak out against matrimonial crimes with the same brush?
Arguments By Men Welfare Trust (MWT)
During the hearing on Wednesday, the court heard arguments from Men Welfare Trust, which opposed the petitions filed before the court. Among other things, the trust sought to highlight the possibility of misuse of the law, if the exception is struck down as unconstitutional by the court.
Amit Lakhani, President (MWT) gave examples how Marital Rape, if becomes an offence, could be interpreted. He said,
Suppose a couple goes out, drinks and engages in sexual act after getting home. This would count as rape because consent under intoxication cannot be right.
Adding further, he said,
There are circumstances when a newly wedded wife say I do not want to have sex and husband respects that. Sometime later, the family persuades and then she agrees. Some years later she can come back and say I was under coercion.
Submissions were also put forth by Ritwik Bisaria, VP, Men Welfare Trust. He argued that various international and domestic judgments cited by the petitioners cannot be supported, highlighting relevant portions from them.
On the aspect of constitutionality, Bisaria argued that in Article 15, which prohibits discrimination on three parameters, since marital status is not part of the prohibition, an Exception based on the same cannot be called unconstitutional. He added,
In Article 14, there is ample protection under other laws available to wife. Equality within the same law is not mandated under Article 14.
Another lawyer, Advocate Raj Kapoor, arguing an impleadment application (application filed by a party wanting to be part of the proceedings) filed in the case, also argued against the petitions, asserting that “if Exception 2 is struck down, it is likely to be misused as Section 498A IPC has already been misused”.
Section 498-A of the IPC deals with cruelty or harassment of a woman by her husband and/or his relatives.
Centre’s Stand On Marital Rape Criminalisation:
The Union government in August 2017 submitted before the Delhi High Court that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.
The Centre, in an affidavit filed in response to pleas seeking criminalising marital rape, said the Supreme Court and various High Courts had observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
The reply, filed before a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, also sought to implead the State governments in the matter to know their opinion to avoid any complication at a later stage. The affidavit, filed through Central government standing counsel Monika Arora, then said,
It has to be ensured adequately that marital rape does not become a phenomenon, which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands.
However during the hearing at Delhi HC yesterday, Advocate Monika Arora (for Centre) informed the court that there are certain facts that are not on record and she will file her affidavit.
The bench informed Arora that it is in the final hearing and will not entertain any affidavits and she can present her written submissions.
The hearing in Martial Rape PIL will continue today.
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