On the argument that a new offence would be created if the exception is struck down, Rao cited the Supreme Court judgment in Independent Thought. In this case, the apex court read down the earlier exception to Section 375 and held that sexual intercourse with a girl below 18 years of age is rape regardless of whether or not she is married.
Rao submitted that when the apex court read down the same exception, it had said that it was not creating an offence, since the offence already existed under Section 375.
“There can be no cavil of doubt that the courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 IPC, no new offence is being created. The offence already exists in the main part of Section 375 IPC as well as in Section 3 and POCSO. What has been done is only to read down Exception 2 to Section 375 IPC to bring it in consonance with the Constitution and POCSO,” the Court had held in that judgment.
He said that in doing so, the apex court had simply removed a common law fiction which had become anachronistic and offensive.
On the contention of the opposing parties that the Supreme Court had refused to tackle the marital rape issue in Independent Thought, Rao said that though the petition in that case did challenge the whole provision, a statement was made later that the issue will be restricted to the interest of children, and therefore, the Court did not delve in the issue of marital rape.