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'Marital Rape Biggest Form Of Sexual Violence Against Women In Matrimonial Home, Goes Unreported": Sr Adv Colin Gonsalves Argues In Delhi HC

Nupur Thapliyal
7 Jan 2022 12:55 PM GMT
Marital Rape Biggest Form Of Sexual Violence Against Women In Matrimonial Home, Goes Unreported: Sr Adv Colin Gonsalves Argues In Delhi HC
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In a bunch of pleas seeking criminalization of marital rape in India, one of the petitioners today told the Delhi High Court that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied. Senior Advocate Colin Gonsalves appearing for petitioner submitted before a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar...

In a bunch of pleas seeking criminalization of marital rape in India, one of the petitioners today told the Delhi High Court that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.

Senior Advocate Colin Gonsalves appearing for petitioner submitted before a bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar thus:

"This is probably the biggest form of sexual violence against women in the matrimonial home, in the confines of the home, unrecorded, unreported, there is no FIR. If one counts the total number of married men and married women, how many times this rape takes place within an institutional marriage, it's a huge figure which is never reported or analysed or studied."

Making the said arguments, Gonsalves referred to the factual background of the case by apprising the Court that the petitioner, a 27-year-old woman was brutally raped by her husband after which she sustained terrible injuries as an outcome.

"Very often, there are cases of women of marital rape, nobody will help them, neither their parents nor the police. Police will laugh at them saying how can you come and file an FIR against your husband," Gonsalves added.

He took the Court through various international judicial decisions on marital rape starting from the House of Lord judgment in the case of R v. R.

In the said case, the House of Lord had overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse.

He thereafter referred to the case of C. R. v. United Kingdom wherein the European Commission of Human Rights had held that "a rapist remains a rapist regardless of his relationship with the victim".

Gonsalves also relied on the Nepal Supreme Court judgment delivered on marital rape wherein it was held that "a marriage does not mean women to turn in to slaves. Thus, women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self- respect and right to self-determination."

Gonsalves specifically emphasized that the Nepal Supreme Court directed the Parliament to introduce a Bill for bringing necessary amendments as a solution with regard to marital rape, taking into account the special situation of marital relationship and position of the husband.

"They follow different proposition. If they find that a statute is not right, they issue directions to the Parliament to make an appropriate law. India takes it for granted that the Courts cannot direct an appropriate statute be enacted but this is not a universally followed procedure," Gonsalves added.

The Court will now continue to hear the arguments on Monday.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals. They seeking to strike down the exception in the Indian law that does not consider sexual intercourse with a minor wife, above 15 years of age, as rape.

Case Title: RIT Foundation v. UOI and other connected matters

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