Consent an implicit condition in exceptions to Section 375 of IPC: 2nd amicus in Delhi HC

New Delhi: Senior Advocate Rebecca John on Wednesday submitted arguments before the Delhi High Court against the exemption accorded to married men under Section 375 (Rape) of the IPC — noting that consent of the woman is implied in this exception.

Beginning her submissions as the second amicus curiae appointed by the bench in the pleas seeking criminalisation of marital rape, John traced the history of the exception in the law and how it was struck down by the judiciary in the United Kingdom, before deconstructing the offence of rape and its definition to underline that "consent" was the basis on which the sexual acts are criminalised.

While making the point that the consent of the woman was implied in the exception provided in Section 375, the Senior Advocate referred to the other exception in the law — meant for medical examinations. She drove home the point that just as the consent of the woman is implied in the first exemption — so must it be for the second one (in marriages), noting that it would be an absurdity to negate consent just for the second exception.

Her arguments came as she broke down the offence of rape to show that the sexual acts described in the provision and the condition under which they are committed are two aspects of the offence that cannot be separated. She argued that the same sexual acts when committed with consent do not constitute an offence and that the absence of consent forms the foundational basis of the offence.

At this point, the Delhi High Court noted that there was a misalignment and anomaly with the erstwhile Section 377 (now, decriminalised) and Section 375 of the IPC.

During the hearing, Justice Shakdher said, "Apart from the fact that anal sex is part of sexual act and therefore, if there is consent that is not rape. But in section 377, prior to the Supreme Court judgement, that anomaly remained. Could he then say that there was consent?"

To this, John said the act no longer attracts Sec 377 and so it is open to plead consent.

A bench of Justices Rajiv Shakdher and C Hari Shankar is currently hearing a batch of petitions seeking the criminalisation of marital rape. Several men's rights organisations have also intervened in the matter. While the court noted that it will take John's submissions on record, it has now posted the matter for next hearing today.