Amid demands from women organisations and activists to make marital rape a criminal offence, the Delhi high court on Monday asked the Centre to spell out its stand on the contentious issue.
A bench of Chief Justice G Rohini and justice Jayant Nath asked the Centre to respond to a petition seeking to declare Section 375 of the Indian Penal Code (IPC) as unconstitutional as it discriminates against married women sexually assaulted by their own husbands.
The HC agreed to examine the issue raised in a petition filed by NGO RIT Foundation, which it had disposed of in July last, after the government said the ground raised in this case was different from the plea pending before the apex court. It posted the matter for further hearing on March 23.
Earlier, the court had disposed of a plea filed by the NGO on the ground that Supreme Court was already seized with the issue and hence it was not inclined to entertain this writ petition. Thereafter, the NGO had filed a petition seeking the review of a July 8, 2015, order of the court.
The NGO has contended that exception to Section 375 of the IPC to the extent that it granted immunity to a husband who rapes his wife, who is above 15 years of age, was unconstitutional.
“The law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his own lawfully wedded wife and is therefore, a violation of the Right to Privacy guaranteed to the wife under Article 21 of the Constitution,” the petition filed by advocate Lohitaksha Shukla said.
Shukla said the Section 375 is also a flagrant violation of Section 15 of the Constitution which prohibits discrimination on the basis of sex. “There is no intelligible basis for such discrimination,” he added.
The Supreme Court had in February last year refused to entertain a woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person.
“You are espousing a personal cause and not a public cause...This is an individual case,” a bench of justice AR Dave and justice R Banumathi said, refusing to take up a petition by a Delhi-based woman MNC executive.
The petitioner had alleged that her husband repeatedly resorted to sexual violence but she was helpless as marital rape was not a crime in India. She had challenged the validity of an exception to Section 375 of the IPC that says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without consent. The provision, the woman said, violated her fundamental right to life and liberty.
The law commission in its report to the government in March 2000 recommended that forced sexual intercourse by a husband be treated as an offence just like any physical violence by a man against his wife.
Justice JS Verma committee that reviewed rape laws after the December 16, 2012 gang rape of a para-medical student in Delhi had also given a similar suggestion.
But the government has chosen not to change the law that is apparently based on patriarchal social norms.
According to UN Women’s 2011 report, marital rape is a criminal offence in about 52 countries, including the United States, the United Kingdom, Canada, France and neighbouring Bhutan. The report said 127 countries did not explicitly criminalise rape within marriage.
Replying to a debate on a private member bill, minister of state for home affairs Kiren Rijiju had in December last year told the Lok Sabha that the government wass planning to bring a comprehensive law to criminalise marital rape by amending the Indian Penal Code.