Delhi High Court refuses to entertain PIL seeking criminalization of Marital Rape

A Division Bench of the Delhi High Court comprising Chief Justice G. Rohini and Justice Jayant Nath has refused to entertain a PIL challenging Section 375 of the IPC which states that sexual intercourse by a man with his own wife, who is not under 15 years of age, is not rape.The Court refused to entertain the PIL because a similar matter is pending for consideration before the Supreme Court.Rit Foundation in its PIL had contended that the exception in section 375 was "unconstitutional and violative of the Right to Equality guaranteed to married women under Article 14 of the Constitution as it decriminalizes rape when the perpetrator is the lawfully wedded husband of the victim".The petition had also stated that marital rape has been criminalized in almost all major common law jurisdictions throughout the world, including in the US, the UK, South Africa and Canada."The criminalization of marital rape was also recommended by Justice J.S. Verma Committee in 2013, however, government has desisted from paying any attention," it added.The debate regarding marital rape had resurfaced after the hue and cry over the brutal gang-rape and murder of a student on a Delhi bus. Justice J.S. Verma committee, formed in the aftermath of the Delhi gang rape had advocated criminalization of marital rape as well but this was rejected due to apprehension that it would dent the institution of arranged marriages and lead to frivolous complaints.The Committee stated in its report, “Under the Indian Penal Code sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.”In a recent discussion on marital rape in the Rajya Sabha, Minister of State for Home, Haribhai Parathibhai Chaudhary said in the Rajya Sabha expressed the view that the concept of marital rape does not apply in India as marriage is treated as sacred here.He said, "It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament.”This was in reply to a question written by DMK's K Kanimozhi, who had asked whether the government was planning to amend the law to make marital rape a crime.On the International front, Article 2 of the Declaration of the Elimination of Violence against Women includes marital rape explicitly in the definition of violence against women. It is illegal in 18 American States, 3 Australian States, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Soviet Union, Poland and Czechoslovakia.Legal experts argue that the exception provided to the offence of marital rape goes against the virtues of the Constitution of India as well. Right to live with human dignity has been included under Article 21 of the Constitution. The Supreme Court has held in a plethora of cases that the offence of rape violated this basic human right attributed to every citizen. Rape is considered to be a crime against the entire society. Marital rape is no different and the exemption doctrine is vocative of a woman’s right to live with dignity. Also, insofar as the marital rape exception creates a classification between married and unmarried women, and denies to the former, equal protection of its criminal legislation, it prima facie violates Article 14.Many organizations and activists in India advocate criminalization of rape committed under the veil of marriage. Sahiyar (Stree Sangathan) in an interview to the Time of India, said, “We believe that right over one’s own body is a fundamental right, and marital rape violates this basic human right of women. We have been demanding it to be recognized as a crime, and had also collectively forwarded this recommendation to the Verma Committee, along with other women organizations.” NGO leaders Trupti Shah and Rita Choksi also wondered why, when it was accepted in the Verma Committee Report, was it “conveniently kept aside in the ordinance passed by the government.”You may read:Marital Sex even if forcible is not Rape; Delhi Court [Read Judgment and a close look at the Law relating to Marital rape in India] Rape in the Wedlock!!! Marital Rape- Judge Remarks Physical Relations between Husband and Wife even if Forcible, Not Rape; Debate Regarding the Law Resurfaces

Delhi High Court refuses to entertain PIL seeking criminalization of Marital Rape

Apoorva Mandhani

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