Senior advocate Rebecca John on Monday told the Delhi high court that she has been receiving 'hate mails' asking her to step down from the position of amicus curiae in petitions seeking the criminalisation of marital rape as she already has an 'opinion' on the issue.
The senior lawyer, who contended that the marital rape exception was not constitutional, said that the marital rape exception would be tested on the anvil of its constitutionality and an individual's opinion was not relevant.
“To all those who asked me to recuse from the matter because I have an opinion on the subject... I've been receiving a lot of hate mail. Ultimately the challenge is only to be tested on the anvil of constitutionality. If it is constitutionally sound, the exception remains. If it is unconstitutional, it goes. It doesn't matter what views we hold on the subject,” she said.
“If having a view was a ground for recusal then everyone should recuse from every case. Every intelligent person has a view on everything,” remarked Justice C Hari Shankar, who is part of the division bench headed by Justice Rajiv Shakdher.
The bench is hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association, a man and a woman seeking striking down of the exception granted to husbands under the Indian rape law.
The senior lawyer argued before the court that forced intercourse with the wife violated her right to bodily integrity and sexual decisional autonomy as she concluded her submissions.
She had earlier argued that there is no “right” but only an “expectation” of conjugal relations with wife in a marriage and the same also cannot lead to the husband having forced relations with her.
She had also said that unlike several offences under the Indian Penal Code, the offence of rape was “gendered”, having "consent" of a woman as one of the ingredients and that the Justice JS Verma Committee report on amendments to criminal law had also recommended the deletion of the marital rape exception.
The petitioners have challenged the constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.