Marital rape hearing: Forced sex in marriage ‘abuse’ at best, NGO tells HC

There are other sufficient provisions in the IPC and other statutes to redress the grievances of a woman, the HC was told

Opposing a clutch of pleas that sought to criminalise marital rape in India, the counsel for NGO Hridey, an intervenor, told the Delhi high court on Tuesday that offences concerning marriage stand on a different footing and the wisdom of Parliament in retaining the marital rape exception should not be doubted.

The hearing in the case will continue on January 27. (Picture for representation only)

There are other sufficient provisions in the IPC (Indian Penal Code) and other statutes to redress the grievances of a woman, advocate RK Kapoor told the court.

Kapoor also contended that forced sexual intercourse between husband and wife cannot be labelled rape and at worse, such an act of wrongdoing can be called “sexual abuse”, and a wife cannot compel the prescription of a particular punishment against her husband “to satisfy her ego”.

Referring to the court’s earlier observation that if a sex worker who was forced to have sexual intercourse could file rape charges, why should a “wife be less empowered”, Kapoor said that to compare the two would be an “insult to the institution of marriage”.

Kapoor told a bench of justices Rajiv Shakdher and C Hari Shankar, which is hearing the pleas, “A perpetrator cannot claim restitution of conjugal rights against sex worker and correspondingly sex worker cannot claim regular maintenance from a perpetrator. There is no emotional relationship between sex worker and the stranger. The relationship between husband and wife is a package of a large number of mutual rights and obligations which are social, physiological, religious, economic etc. It cannot be limited to just one event of consent for sexual relationship alone.”

Exception 2 of Section 375 IPC decriminalizes marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

“The legislature has classified several types of sexual offences under the IPC on the basis of a “number of incidental and collateral circumstances, the relationship between the parties and the age of the woman”, and the retention of the marital rape exception which is based on a “reasonable classification” cannot be found fault with,” Kapoor said.

The bench is currently hearing PILs filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association and two individuals who have sought to strike down the exception in the Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands.

In 2017, the central government in an affidavit 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.

On Monday, the Union government told the court that it was considering a “constructive approach” on the issue of criminalising marital rape and has sought suggestions from several stakeholders and authorities. Following this, the court granted it 10 days to respond on the matter.

The hearing in the case will continue on January 27.