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.