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Criminalising Marital Rape May Destabilise Institution Of Marriage: Centre Tells Delhi HC [Read Written Submissions]

Citing Misuse of Section 498A of IPC, the Centre has submitted before the Delhi High Court that criminalizing marital rape, as sought by some petitioners, may destabilize the institution of marriage apart from being an easy tool for harassing the husbands.

The Centre has submitted that there can be no lasting evidence in case of sexual acts between a man and his own wife.

The Centre has claimed it cannot criminalise marital rape because India has its own unique problems due to illiteracy, lack of financial empowerment of females, mindset of society, vast diversity in the cultures of States which implement criminal law, and poverty etc.  Lastly, the Centre has also claimed that it is necessary to implead the State Governments in the matter to know the opinion of these States to avoid any complications at a later stage.

The Centre’s affidavit has been filed y the Central Government standing counsel, Monika Arora.

The Centre also submitted that merely deleting Exception 2 will in no way serve any useful purpose as a man is said to commit ‘rape’ as defined under Section 375 of IPC cannot be the same in the case of marital rape.

“If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife”.

In the writ petitions filed before the Delhi High Court, the substantive challenge has been laid to Exception 2 to Section 375 as well as Section 376B of the IPC on the ground that it excludes marital rape as a criminal offence.  It is contended that this exception is unconstitutional  and violates the right of married women under Articles 14, 15, 19 and 21 of the Constitution of India.   In one of these petitions, challenge is laid to statutory provisions of Section 198B of the Code of Civil Procedure read with Section 376 the IPC on the ground that differential procedure as well as the differential punishment is prescribed which is arbitrary and unconstitutional.

Exception 2 to Section 375 says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.  Section 376B says that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.

The lead petition in the case has been filed by RIT Foundation and The All India Democratic Women’s Association (AIDWA) and a marital rape victim joined as intervener.

Another intervener, Abdullah Khan, whose wife had lodged complaint against him for allegedly raping her and forcing her into unnatural sex, has claimed immunity, saying amendments in criminal law override Section 377 (unnatural sex) in case of married couples.

A similar petition filed by Independent Thought in the Supreme Court has challenged marital rape only if the victim is under 18 years of age.

Advocate Karuna  Nundy who is leading the arguments for the petitioners told LiveLaw that she will file the written submissions today.

The case is listed for hearing before the bench of the Acting Chief Justice of the Delhi High Court , Gita Mittal and Justice C.Hari Shankar as item 32 today.

Read the Written Submissions Here


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  • RSM says:

    Wisdom does not necessarily lie with activist groups on any matter in society. These activist groups are by definition a small number of people. While they bring real reforms sometimes, mostly they are a noisy lot. The HC must not ignore the mute millions in India in this funny case of marital rape.

  • SATYA SUNDAR says:

    Sex against will is rape whether in or outside of marriage. What one should be fighting against is repeated assault. I don’t know what the penalties are but does a rapist get a lesser penalty if he is tried as a rapist not a serial assaulter.

  • Prany says:

    I have a serrious question. I have read about a divorce case in which a women accused her husband of cruelty because he was not having sex with her and thus he was denying her “natural desires”. The court did rule in her favour.

    Now I am thoroughly confused. If marital rape law is passed it would mean that a man has to take consent (i.e.permission) from her wife (better on record to stand scrutiny in the court of law). 

    However if he doesn’t want to have sex, when his wife wants, he will be denying her natural desires and thus can be accused of being cruel to her!! This is called “chit bhi meri, pat bhi meri” (head I win, tail you lose) for the wife!!!
    Can someone tell me what a poor husband is supposed to do?

  • Partha Dutta says:

    Make it a ground for divorce from both sides but don’t criminalise it. Seduction, if is not an offence, why should marital rape be? Rather, no-no, (yes-yes) when is the norm. Not a single family will survive in this way.

  • Vedanand says:

    No more spoiling of institution called marriage better there is no conversation between the two genders . For creating more differences and to ruin a culture only sky is the limit. What do they actually want to achieve . Better those person live separately or under an agreement at their personal level.

  • Harsh says:

    The institution of marriage is in danger in India thanks to the ever increasing rights of women in the name of women empowerment. Every woman knows she can destroy a home merely upon any disagreement with her husband. She knows she has the power to spoil the life of her in-laws, therefore she is not afraid.
    An alternative to marriage should be a mutual agreement between husband and wife. The agreement should be renewable after every 5 years such that both the parties remain open and true about their relationship. If a partner cheats upon or be cruel to other, they would be able to end the agreement after a stipulated time period. The agreement should contain conditions as to what and how much alimony would be paid in case of separation. Humanity is primary in present times and nobody should be given the right to spoil anybody else’s life by clinging to court for years for divorce.

  • Unnikrishnan TK says:

    Along with the mentioned Sections, the IPC 376 section also to be reviewed and restructured, if applicable. In the current scenario, there are girls educated are using the sections like IPC 376 as a weapon, when they have misunderstanding in the relationship. It must be reviewed and restructured, with amendment.