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‘Can’t make marital rape an offence until talks end’: Centre to Delhi HC

The union govt’s petition indicates no change in its position — and comes amid a rising chorus seeking the criminalisation of marital rape
It relied upon parliamentary standing committee reports in 2008 and 2010 to argue that the need is to overhaul the criminal laws instead of making any piecemeal changes in any specific legislation.
Published on Jan 15, 2022 07:25 AM IST

The Union government has informed the Delhi high court that marital rape cannot be made into a criminal offence until the Centre’s consultation with all stakeholders is complete, paving the way for comprehensive amendments in criminal law instead of “piecemeal” changes.

Submitting a fresh affidavit in response to a clutch of petitions to criminalise marital rape, the Centre maintained that it is examining the issue of broad changes in criminal law of the country and that the petitioner could also give their suggestions to the competent authorities.

The affidavit, filed on Thursday, stated that the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, cannot be struck down at the instance of the petitioner alone. “Principles of natural justice require larger hearing of all stakeholders,” emphasised the government.

The government’s petition indicates no change in its position -- and comes amid a rising chorus seeking the criminalisation of marital rape.


Underlining that amendment of criminal law is “a continuous process”, it added that suggestions have been invited from chief ministers of all the state governments and from Union territories, the Chief Justice of India, chief justices of all high courts, judicial academies, national law universities, Bar Council of India, Bar Council of all high courts and members of both Houses of Parliament. The affidavit, filed through the Union ministry of home affairs, however, does not mention the date when views were solicited.

“The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus, the government is already seized of the matter. The petitioners are also at liberty to give their submissions/suggestions to the Ministry,” stated the affidavit, which has been reviewed by HT.

It relied upon parliamentary standing committee reports in 2008 and 2010 to argue that the need is to overhaul the criminal laws instead of making any piecemeal changes in any specific legislation.

The government further cited the 172nd report of the Law Commission of India on “Review of Rape Laws” in March 2000 that said it would not recommend deletion of the exception clause in Section 375 “since that may amount to excessive interference with the marital relationship”.

Further, a 2017 Supreme Court judgment, said the government, read down an exception to Section 375 only to the extent of criminalising rape with a minor wife but clarified at the same time that it has not expressed any view on the issue of marital rape.

“We make it clear that we have refrained from making any observation with regard to the marital rape of a woman, who is 18 years of age and above, since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally,” said the 2017 judgment, as quoted by the affidavit.

Even as the Centre’s affidavit makes references to the reports of the Law Commission and parliamentary panels, it has refrained from mentioning the recommendation made by Justice JS Verma’s committee in 2013.

The Justice Verma committee was set up to propose amendments in criminal laws in the wake of gang- rape of a paramedical student in December 2012. This committee received around 80,000 suggestions and finalised its 644-page report in 2013, proposing that “the exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”. The committee recommended the criminalization of marital rape, since the state of being married does not generate automatic consent to sexual acts.

The fresh affidavit has been filed by the Union government in addition to the one filed in August 2017 which said that it has to be ensured that marital rape does not become a phenomenon that destabilises the institution of marriage and “an easy tool for harassing the husbands”. The petitions have been pending before the court since 2015.

The 2017 affidavit added: “What may appear to be marital rape to an individual wife, it may not appear so to others...if all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.”

A bench of justices Rajiv Shakdher and C Hari Shankar is currently hearing final arguments in the bunch of PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals, who have sought removal of the exception to Section 375, saying that it discriminated against married women who were sexually assaulted by their husbands.

The Delhi government has submitted before the bench that a court does not have the power to create a new offence even as it argued that marital rape is treated as a “crime of cruelty” in India which can be prosecutable under charges of domestic violence, assault or cruelty under the IPC.

On his part, senior advocate Rajshekhar Rao, who has been appointed as amicus curiae to assist the court, has argued in favour of doing away with the exception in Section 375 to make marital rape an offence.

Referring to the fresh affidavit on behalf of the Union government, solicitor general Tushar Mehta made a brief statement on Thursday, saying the government is considering a “constructive approach” in the matter.

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