HC Seeks Centre’s Response on Petitions Against Marital Rape

The petitions were filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim.

Candle light march for rape survivor Shraddha by students in Aurangabad. Image used for representational purpose.

(Photo: The Quint)

The Delhi High Court on Tuesday asked the central government to file its response to a bunch of petitions challenging the exception in the law under Section 375 of the IPC, that protects a husband from being tried for the rape of his wife if she is over the age of 15.

A division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the advocate representing men's rights activists, who are opposing the petitions, that if domestic violence had penal circumstances, "how do you justify this exception?"

Also Read: Are Men in India Culturally Superior to Women: HC on Marital Rape

The bench was hearing petitions filed by NGOs RIT Foundation, All India Democratic Women's Association and a marital rape victim, challenging the exception to rape under Section 375 and Section 376B as unconstitutional.

Section 375, which defines “rape”, contains the exception provision which states that the law would not apply to assault or sexual intercourse by a husband on his wife over 15 years of age. Section 376B deals with sexual intercourse by a man with his wife during separation.

Also Read: Marital Rape: The Secret Shame India’s Sweeping Under the Rug

One of the petitions also challenges Section 198B of the Criminal Procedure Code, which states that no court shall take cognizance of an offence punishable under Section 376B of the IPC where the persons are in a marital relationship.

Senior counsel Colin Gonsalves, appearing for one of the petitioners, provided a list of 51 countries which have criminalised marital rape. The advocate said even Nepal, a Hindu state, framed laws against marital rape way back in 2002.

Also Read: Marital Rape: Sexual Intercourse With Wife Not Rape, Centre to HC

According to the petitioners, the law as it stands today amounts to a state-sanctioned licence granted to the husband to violate the sexual autonomy of his lawfully wedded wife and is therefore, a violation of the Right to Privacy guaranteed to the wife under Article 21 of the Constitution.

Also Read: Raped Husbands and Misuse: Flipside Of Marital Rape Law Debate

Karuna Nundy, chief advocate on the petitions filed by RIT and AIDWA, was quoted by The Wire as saying:

It’s criminal to beat your wife, it’s criminal to kill your wife, but if you rape your wife, that is legal. A RICE Institute study that looks at government health data shows that only about 3 percent of all rapes happen outside marriage, so most rape is legal rape. 

Also Read: Government Thinking Of Criminalising Marital Rape: Maneka Gandhi

Challenging the petitions seeking to criminalise marital rape was a group of ‘men’s rights’ activists from the Save Family Foundation, who argued in a counter-petition in 2016 that rape laws favoured women and were often misused in domestic conflicts.

One of the men’s rights activists Amit Lakhani was quoted by The Wire as saying:

There is nothing called rape inside the marriage. If you feel you’re being raped, a man or a woman, you can simply walk out of the marriage.

Earlier, the central government had told the high court that if marital rape was brought under law, "the entire family system will be under great stress". The Centre said the issue "deals exclusively with private affairs of husband-wife based on traditional social structure and hence can't be said to be unconstitutional".

The court has now posted the matter for 28 August.

Also Read: Marital Rape Law Will Put Families Under Stress: Parliament Panel

(With inputs from IANS and The Wire)

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