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Marital Rape Exception Violates Married Women's Rights Under Article 21: Petitioner Argues In Delhi High Court

Suhavi Arya
11 Jan 2022 3:27 PM GMT
Marital Rape Exception Violates Married Womens Rights Under Article 21: Petitioner Argues In Delhi High Court
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The Delhi High Court today continued hearing a batch of petitions challenging the constitutional validity of exception to Section 375 of the Indian Penal Code, pertaining to Marital Rape.The Division Bench of Justice Rajiv Shakdher and Justice C Hari Shankar today heard Advocate Raghav Awasthi on behalf of one of the Petitioners.Awasthi primarily argued that non-criminalization of marital...

The Delhi High Court today continued hearing a batch of petitions challenging the constitutional validity of exception to Section 375 of the Indian Penal Code, pertaining to Marital Rape.

The Division Bench of Justice Rajiv Shakdher and Justice C Hari Shankar today heard Advocate Raghav Awasthi on behalf of one of the Petitioners.

Awasthi primarily argued that non-criminalization of marital rape is a violation of married women's rights guaranteed under Article 21 of the Constitution.

Reliance was placed on Francis Coralie Mullin v. Administrator, Union Territory of Delhi, where the Supreme Court discussed the detrimental psychological impact an act of rape has on the victim, implying that the same is a violation of the Right to Life and Personal Liberty guaranteed under the Constitution of India.

He stated that there is no intelligible differentia between a rapist and a married man who forces himself on his wife. In this regard, the written submission filed on behalf of the petitioner states,

"Essentially, what is being argued here is that one set of rapists should be treated differently from another set of rapists just because they happen to be married to their victims."

Awasthi pointed out that marital rape is a punishable offence in various jurisdictions, including in Pakistan.

He relied on a case of Edgar Jumawan (2014) where the Supreme Court of Philippines held that marital rape cannot be condoned and not treated as rape, given the fact that Philippines is party to International conventions like Convention on the Elimination of All Forms of Discrimination Against Women and UN Declaration on the Elimination of Violence against Women.

Awasthi highlighted that India is also a signatory to the said conventions and argued that international conventions cited in the Philippines judgement have to be used as an aid to interpret domestic municipal law. In case there is vacuum in national legislation, it can be filled by international precedents, he added.

This argument was however dismissed by Justice Shakhder, stating that there is no vacuum in India. "We have Vishakha judgment, Bank of Kochi, etc."

Yesterday, Advocate Karuna Nundy appearing for one of the Petitioners had argued also that, marital rape exception violates married women's right to dignity, personal and sexual autonomy and her right to self-expression.

Today, the Bench also heard Advocate Nandita Rao, appearing for the Delhi Government, who submitted that the exception does not compel a wife to have sexual intercourse with the husband and that the remedy of divorce, including other remedies under the criminal law, is available to her in such situations.

Previously, Senior Advocate Colin Gonsalves appearing for one of the petitioners argued that marital rape is the biggest form of sexual violence against women which is never reported, analyzed or studied.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

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

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