NEW DELHI: On Thursday Delhi HC Delivers a verdict on criminalizing Marital Rape.  Justice Rajiv Shakdher struck down Exception 2 of Section 375 Indian Penal Code (IPC), which decriminalizes marital rape.

On the other hand, Justice C. Hari Shankar said that the validity of the controversial provision in rape law, saying it was based on “intelligible differentia”. Today, the High Court has permitted the parties involved in the case to approach the Supreme Court over the issue.

In India, Marital Rape is not defined in our Country. NGO RIT Foundation, All India Democratic Women’s Association, and a marital rape victim are the two victims, They had challenged as unconstitutional an exception to Rape given under Section 375 of the IPC.

According to that Section,  sexual intercourse by a man with his wife aged 15 years or above is not rape even if it is without her consent. In the year 2017, the Supreme Court increased it to 18 years.

Contrary NGO Men Welfare Trust (MWT), which is opposing the batch of petitions seeking criminalization of marital rape, had argued that sexual intercourse between a husband and wife cannot be treated at a par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.

Government’s stance

Back in the year 2015 when the first petition was filed, the day-to-day hearing commenced in January this year after one of the petitioners mentioned the matter for a final hearing.

The Centre had earlier in an affidavit, filed in 2017, said that criminalizing marital rape “may destabilize the institution of marriage” and would become an easy tool for harassing husbands.

The Centre had stated that the “absence of any such consultative process by the executive/ legislature may result in some injustice to one section or the other”.

Solicitor-General Tushar Mehta had argued that a “holistic view” had to be taken on the issue as it involved a sensitive socio-legal issue.

The Centre urged the High Court to defer the ongoing proceedings, challenging the provision in law that makes an exception for marital rape, until it carried out a consultation process with all stakeholders, including all State governments.

The court had, however, said that this was an aspect it would examine as and when it rendered a judgment in the matter.

The Delhi government had, through its counsel Nandita Rao, also argued that if the court make marital rape it would be violative of Article 20 of the Constitution, as it was the prerogative of the legislature.

Ms. Rao said that sexual abuse was an offense under Section 498A of the Indian Penal Code, which deals with a husband subjecting a wife to cruelty. She had said quashing the exception would be giving primacy to women who had suffered sexual abuse at the hands of their husbands as compared to those who had been subjected to mental harassment.

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(MARCH – APRIL 2022)


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