The that since an amendment has already been

The
present petition deals with the contention raised by the petitioner stating
exception (ii) of section 375 as being unconstitutional.  the
doctrine of Supremacy of Parliament connotes that Parliament enjoys unlimited
powers of legislation and is fully authorized to make, alter or repeal any law
concerning anything and no parliament can bind a future parliament that it
cannot pass a law or cannot reverse or amend an existing law. Also, as per
article 142 of the constitution, decrees passed by supreme court are considered
as laws. in the case of Independent thought v UOI 1 , the supreme court made
an amendment changing the exception (ii) of section 375 to Sexual intercourse or sexual acts by a man with his own wife, the wife
not being 18 years, is not rape.

The counsel submits that since an amendment has already been
made regarding the minor wife issue, the petitioners should now focus on the
aspect of marital rape. The court did not deal with the issue of marital rape
in the Independent thought v UOI case, since the petitioners in that case
decided to cover only the minor wife issue, with regard to the age in the
exception.

 

Sexual
intercourse by a husband to his wife, with or without consent cannot be treated
as “rape”.

The counsel hereby submits that at the outset
it wishes to make it clear that the respondent is not denying the suffering and
sexual abuse of either of the spouse in a matrimonial relationship. However,
the sexual abuse in a domestic relationship should not be termed as Rape. Even
the law on domestic violence which was enacted in as recent as 2005, refused to
term it as “Rape”. This clearly shows the intention of the legislator that it
did recognize and provided a remedy in cases of sexual abuse but refused to
term it as “Rape”.

If
there is the act of sexual intercourse it is without consent of the women,
however a marriage is solemnised fully by choice and enthusiastic agreement of
both the man and woman with full knowledge of friends and family and not by
fraud or accident or force. Having given the consent to marriage, then by
definition wife (and also husband) are making conscious decision to keep sexual
relations with her husband (or wife) as marriage without sex is an anathema
which has been stated in Vinita Saxena Vs Pankaj Pandit by supreme court of
India on 21 March, 2006. 2

That
in case of divorce or separation the woman effectively withdraws her consent
for having sexual relations with her estranged husband. An act of sexual
intercourse with application of force in such a situation by the husband may
fall within the definition of rape as there is no consent and he will be liable
for criminal prosecution and the present rape law already covers such situation
and is applicable in divorced, separated, estranged married couples.

 That before removing the protection granted to
husbands, there is a need to look into the issue as a whole. A person when gets
married be it wife or a husband anywhere in the world loses his/ her right to
perform the sexual act with anyone other than the spouse in other words a
married man or a women cannot have sex outside marriage even if it is with
consent and anybody indulging into it amounts to criminal offence U/s 497 of
the IPC. So when a person is getting married, he or she is giving consent to
the spouse to have sex and any such sexual act cannot be termed as Rape. If
there is a physical harm to either of the parties then it may be called sexual
assault for which there are laws already in place.

 There are two corresponding rights involved in
the case. On the one hand there is right to say no to a sexual intercourse to
the spouse and on the other hand there is a right to have a conjugal
relationship between the spouses. The two rights have to go hand in hand so that
a happy marital relationship may sustain during the lifetime of the spouses.
Accordingly for a happy married life, there has to be an understanding between
the husband and a wife and if there is a breach of understanding, legal
recourse should be available to the spouses but in no circumstances a husband should
be branded a “Rapist”.

That
a mere comparison between the marriages solemnized in Indian society and
western societies makes it clear that in Indian society marriage is considered
to be a sacred relationship with aim to procreate and lead a happy married
life. The marriages in the western world are considered to be a contract
between the husband and wife.

“Marital
Rape” can not apply in Indian context. And if there is an abuse of sexual
nature, Indian laws have already provided a remedy to deal with it.  The Applicant wishes to argue that the
existing laws are very much capable of dealing with the cases of sexual abuse
of women and there is no need to either bring a fresh law to deal with it nor
there a requirement to withdraw the protection granted to husbands provided
under Section 375 of the Indian Penal Code.

1 Independent
Thought vs. Union of India (UOI) and Ors. AIR 2017 SC 1298

 

2
Vinita Saxena Vs Pankaj
Pandit AIR 2006 SC 1687