'Will exception to rape law be unconstitutional if it's gender-neutral?'

New Delhi: The Delhi High Court Thursday deliberated upon the challenge raised to the exception under the rape law that protects a husband from prosecution for a non-consensual sexual act with his wife and asked whether the same could be unconstitutional if the law was gender-neutral.

The court's query came while hearing a batch of pleas seeking to criminalise marital rape.

Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being under fifteen years of age, is not rape.

Suppose section 375 (definition of rape) of the IPC was gender-neutral and this exception said that when the two parties are married according to you will the exception be unconstitutional even then? Justice C Hari Shankar, who was part of a division bench headed by Justice Rajiv Shakdher, asked the amicus curiae.

To this, senior advocate Rebecca John, who has been appointed as amicus curiae to assist the court in the matter, said she will endeavour to answer it on Friday.

Let me nuance it. I will try to answer both questions one way or the other. I will come back to answer these questions tomorrow, John said.

While advancing her submissions, she said not every man or sexual act in the marriage is sought to be punished here.

What is sought to be punished and brought within the preview of main definition (of rape) is simply the act of having sexual intercourse with his wife in express disregard to her no. The protection given under exception 2 is not in the nature of exception but an exemption, she said.

She added that if the exception goes, all that the court is doing is one, upholding bodily integrity of woman; two, giving fair play to the definition and three, putting people to notice that this is no longer part of prohibition and no longer gives you immunity.