On the issue of creation of a new offence if the Exception were to be struck down, Nundy argued that the offence of rape pivots on the act or the omission, and not on the offender per se.
“It does take the husbands of adult wives out of the offence as defined in the main law. It grants immunity to husbands and that immunity is provided in the law given by colonial masters. Therefore, if the Exception were to be struck down, it would not be a creation of offence, only a new class of people will be brought under it. The offence already exists. This is the precise reason why the Supreme Court said in Independent Thought case that they were not creating any offence…If my lords were to strike down Exception 2, that would merely introduce a new class of offender. That is all husbands who have had forced sex with their wives.”
She argued that it would not be the first time that the courts have added a new class of offender, since it has been done before by the Supreme Court as well as the High Courts.
“It has been argued repeatedly that Exception 2 makes a sexual act within marriage not rape and that there are several things for the rescue of wives. According to us, it is impermissible since it minimizes the trauma of rape. It must be addressed specifically. The label of offence must reflect the nature of the offence.”
Source: Barandbench
