Non-Criminalization Of Marital Rape Doesn't Compel Wife To Have Sexual Intercourse; Remedy Of Divorce Available: Delhi Govt Tells High Court

The Delhi Government on Tuesday told the Delhi High Court that the exception to Section 375 of IPC pertaining to non-criminalization of marital rape does not leave a married woman remediless pursuant to forced sexual intercourse by her husband.Advocate Nandita Rao 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. A bench comprising Justice Rajiv Shakdher and Justice C Hari Shankar was hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age."There is no dispute that a woman has right to bodily integrity, she has a right to say no. Just because this is not a criminal offence under Sections 375, does that create a compulsion on a woman to have sex with her husband? The answer is no," Rao submitted before the Court. She added "She has a remedy to have divorce under the ground of cruelty. This is under Hindu and Muslim law. She also has a right to register a criminal case under Section 498A IPC. As of today, FIRs are registered by the spouses under Section 377, 498A and 326 of IPC."The Bench also heard Advocate Raghav Awasthi on behalf of one of the Petitioners.Arguments by PetitionerAdvocate Awasthi argued that non-criminalization of marital rape is a violation of Article 21. He 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 relied on the Convention on the Elimination of All Forms of Discrimination Against Women and UN Declaration on the Elimination of Violence against Women, and criminalized marital rape.He highlighted that India is also a signatory to the said conventions and argued that in case there is vaccum in national legislation, it can be filled by international treaty obligations.This argument was however dismissed by Justice Shakhder, stating that there is no vacuum in India. "We have Vishakha judgment, Bank of Kochi, etc."Arguments by Delhi GovtRao argued that while there can be a doubt on the issue in the minds of various courts or investigation agencies, however, she added that unless it is decided that the exception to Section 375 denies a woman the right of divorce or other prosecutions, it cannot be said that it's existence in the penal code violates her rights under Article 21 or compels her to have sexual intercourse with her husband. "The exception to Section 375 does not violate the admitted right to privacy, dignity or the right to refuse sex in or out of marriage because there is no compulsion on a woman and she is not remediless," Rao added. At this juncture, Justice Rajiv Shakdher what is the remedy in case a man forces himself on his wife, despite her refusing to have sexual intercourse."You're saying that she can go and seek divorce on the ground that she doesn't want to cohabitate. That is not the point. The point is an offence has taken place. The exception created a firewall. Is that firewall justifiable on the test of Article 14 and 21, it is only that particular narrow aspect that we have look into," the Judge said orally.Responding to the aforesaid, Rao submitted that the existence of the exception to Section 375 does not take away a woman's right to say no in a marriage.Hearing the response, Justice Shakdher inquired, "You are saying that if she says no and the husband says okay fine thank you then nothing happens? But what happens if she says no and he still imposes himself? An FIR can be filed under Section 326. The point is Section 326 will get attracted along with Section 375 no, in such a grave case."The Judge continued, "And why is it so different for a non-married woman. It affects a non-married woman's dignity and doesn't affect a married woman's dignity, why? At least I find it difficult to appreciate that since she has other remedies, it is not violative of Article 21."On this, Rao responded that while it was not the position that a married woman cannot take recourse of law and send a man to jail, however, the difference is that the sections applied in case of a married woman are different than those applicable in case of non-married woman.This, she submitted, is because whereas the psychological and physical impact of rape is same on both married and unmarried women, however, the social and economic impact is different. "If there will be an offspring from a live in partner and a stranger from rape, that child will not have a status of a legitimate child which under the presumption of Section 113 of Indian Evidence Act…to meet the threshold of Article 14, it has to be shown that there is a difference between a wife and someone who is not a wife," Rao submitted. The Court then inquired would it be an...

Non-Criminalization Of Marital Rape Doesn't Compel Wife To Have Sexual Intercourse; Remedy Of Divorce Available: Delhi Govt Tells High Court

Nupur Thapliyal & Akshita Saxena

The exception to Section 375 does not violate the right to privacy, dignity of married women, the counsel added.

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