The Delhi High Court on Friday, 21 January, continued to hear from senior advocate Rebecca John on the marital rape exception, with the amicus curiae addressing questions posed by the judges the previous day.
Justice C Hari Shankar had asked John, who is assisting the court as an expert in criminal law, whether she would still say that the marital rape exception is unconstitutional if instead of being an exception to Section 375 of the IPC (which defines the offence of rape), it were part of the main definition itself.
This question is important for the court, since it has been argued that eliminating the marital rape exception would lead to creation of a new offence. This 'new offence' argument is predicated on the idea that the core definition of rape under the IPC as it stands cannot possibly include forced sex by a man with his wife.
On the contrary, John had argued that the core of the offence of rape under Section 375 is non-consensual sex by a man with a woman, which would mean even forced sex by a husband with his wife technically falls within the definition.