In the case of RTI Foundation v. UOI and Ors. the Delhi high Court heard the pertinent submissions made by Senior Advocate Rebecca John. Appearing as an amicus curiae, she told the court that the removal of exception 2 from sec. 375 of the IPC will not amount to the creation of a new offence. Exception 2 exempts forceful intercourse by a man on his own wife from the offence of rape.
She relied on the Judgment of Independent Thought v. UOI 2017 where in the SC held that sexual intercourse with minor wife, below 18 years of age is rape and the same will not creat a new offence. Accordingly, if the court declares the said exemption as unconstitutional it will simply lift the immunity from prosecution.
The second question which was addressed before the court as to whether marriage brings reciprocal obligation and whether that reciprocity entitles a husband to commit forceful intercourse without his wife’s consent. While agreeing to the fact that marriage brings with it expectations, which if not fulfilled the spouse is entitled to civil remedies. But when the same expectation becomes physical, injurious and non-consensual, the act must become an offence.
Further, she argued that the NO of a marital partner must be respected. Referring to the supreme court judgment in KS Puttaswamy v. UOI, she said if exception 2 is allowed to remain it will disregard the wife’s right to consent and the same must be viewed as an instrument of oppression. Miss John heavily relied on Joseph shine v. UOI, which struck down sec. 497(adultery). She highlighted the commonality between sec. 375 and 497 wherein the difference is consent.
The exception 2 of sec. 375 must be adjudicated in the light of this judgment as it articulates the concept of a modern marriage while addressing the rights of a modern Indian woman.