‘Why should husband's desire to have sex trump wife's desire not to?’ argued senior advocate Raj Shekhar Rao, who is appointed as an amicus curiae to assist the court in the marital rape hearing.

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news Court Friday, January 14, 2022 - 13:56

Married women will be denied the right to call a rape a rape till the law provides protection to the husband from prosecution for a non-consensual sexual act with the wife, an amicus curiae told the Delhi High Court. "In my view, the exception is bad," he said. Provisions under section 375 (rape) of the Indian Penal Code exempt sexual intercourse by a man with his wife from the offence of rape, provided the wife is above 15 years of age.

A bench of Justices Rajiv Shakdher and C Hari Shankar observed that when two people live under the same roof as husband and wife, an offence of rape is firewalled because of the exception given under the law.

"If there would have been no exception, he would have been amenable to the same punishment (as prescribed for the offence of rape) as any other person," it said

Senior advocate Raj Shekhar Rao, who is appointed as an amicus curiae to assist the court in deciding a batch of petitions seeking criminalisation of marital rape, said the only silver lining is that a woman is "better off when she is assaulted by a stranger as it is a rape", but when she is assaulted by a loved one, the law does not call it a rape.

"The more I think of it, I am unable to accept it. In my view, the exception is bad," he submitted.

In the context of rape, the court has said that it dehumanises the very existence of a woman. The question we have to ask ourselves is whether the court should sit back and look at a woman being dehumanised everyday in married life. We should have pushed your lordships to hear this matter earlier and in an expedited manner. We are guilty for it," Rao submitted.

He further said, "Every day till the time this provision stays in the statute there is a section of society who is denied to call a rape as a rape. Mere fact that there are not so many or so many reported numbers is no reason to step into the questions of looking at a provision."

While opining that the exception given to husbands under the provision is bad, Rao said if a man forces himself upon a woman during courtship or even five minutes before their marriage, it is clearly an offence but if the same act occurs after the marriage, it is not an offence and she cannot call it a rape anymore.

During the hearing, Justice Shankar said that in these proceedings the court was not concerned whether the forcible act was a criminal offence or not, as the legislature treats it an offence but the court has to see if the act should be punished as a rape.

"It is not that the legislature does not treat it as a criminal offence but it had taken a decision that it should not be treated as rape," Justice Shankar said.

‘Considering constructive approach to issue’

The Union government on Thursday told the Delhi High Court that it was considering a constructive approach to the issue of criminalising marital rape and has sought suggestions from state governments, the Chief Justice of India, MPs and others on comprehensive amendments to the criminal law.

Justice Rajiv Shakdher, who is heading the bench dealing with a batch of petitions seeking criminalisation of marital rape, informed during the hearing that Solicitor General Tushar Mehta mentioned the matter before him when certain other parties and Justice C Hari Shankar, who forms part of the bench, were not present.

The matter was mentioned in the morning by the learned SG and he was saying that the government was considering a constructive approach to the matter, said Justice Shakdher.

Union government lawyer Monika Arora told the bench that the Union government was undertaking a comprehensive task of amending the criminal law which includes section 375 (rape) of the IPC.

“We have invited suggestions from all chief ministers of all state governments...the chief justice of India, Chief Justice of all high courts...judicial academies, national law universities, the Bar Council of India, Bar council of all courts and members of both houses of Parliament regarding comprehensively amending the criminal laws,” she said.

The court said that overhaul of the law would take a lot of time and asked the Union government to state if it was dealing specifically with the issue of marital rape exception.

“If vis-a-vis (section) 375 you people (Union government) have some suggestions then we will consider that. Generally, this exercise will take a lot of time,” said the court as it continued to hear the petitions.

The petitions seeking to make marital rape an offence were opposed by NGO Men Welfare Trust (MWT), run by a group of men, which said that married women have been given adequate protection under the law against sexual violence by their husbands.

MWT's representatives Ritwik Bisaria and Amit Lakhani claimed that exception in Section 375 of the IPC, which says intercourse or a sexual act by a man with his wife is not a rape, is not unconstitutional and setting it aside will create more injustice.

Advocate Raj Kapoor, representing NGO Hridey, also opposed the main petitions saying there was no question of discrimination by keeping the exception in the statue book because Parliament retained it through debates and considering the overall view of India society and other statues and punishments.

The high court had earlier wondered how the dignity of a married and unmarried women can be differentiated and asserted that irrespective of marital status, every woman has the right to say 'no' to a non-consensual sexual act.

It said the rationale and the thrust is that a relationship cannot be put on a different pedestal as a woman remains a woman.

“Just because she is married so she can take recourse of other civil and criminal laws and not under section 375 (rape) of the IPC, if she is a victim of forcible sexual intercourse by her husband, is not alright,” the court had said, adding that just because she is married, does she lose her right to say 'no'?"

While opposing the pleas to strike down the exception granted to husbands under the Indian rape law, the Delhi government counsel said the petitioners would have to show that this exemption compels a wife to cohabit with husband and violates her dignity.

The bench was hearing PILs filed by NGOs RIT Foundation, All India Democratic Women's Association. Pleas have also been filed by some men's right organisations which are opposing the petitions seeking to quash the exception.

The Union government, in its affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.

The petitioner NGO has challenged the constitutionality of the exception clause arguing that it discriminates against married women being sexually assaulted by their husbands.

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