New Delhi, January 30
To criminalise or not — the Delhi High Court appears to be in a fix over the contentious marital rape.
While hearing petitions filed by RIT Foundation and three others seeking to criminalise marital rape, a Bench led by Justice Rajiv Shakdher on Friday said the court can’t fold its hands and sit when people complain about a particular law.
The petitioners have challenged the validity of an exception 2 to Section 375 of the IPC on the ground that it discriminated against women raped by their husbands.
Section 375 of the Indian Penal Code defines rape as sexual intercourse without consent and against the will of a woman. But exception to the Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent and against her will.
But in October 2017, the SC ruled that sex with one’s minor wife would amount to rape. It watered down the exception to Section 375 IPC which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.
Even as India dithers, more than 50 countries, including the US, the UK, Canada, France, Mauritius, Sri Lanka and Bhutan, have already criminalised it.
The Law Commission had in 2000 opposed criminalising marital rape on the ground “that may amount to excessive interference with the marital relationship”.
But Justice JS Verma Committee (2013) said, “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”
After considering both reports, a parliamentary standing committee had said if marital rape was made a crime, the family system will be under stress and it could lead to practical difficulties.
The government maintained that the concept of marital rape, as understood internationally, can’t be suitably applied in the Indian context due to illiteracy, poverty, social customs and values, religious beliefs and mindset of the society to treat marriage as a sacrament.
The Centre and men’s rights groups have cautioned the court against criminalising the bedroom conduct of married men by treating it on a par with a “sexual intercourse without consent and against the will of a woman” by a man rank stranger to her is fraught with serious consequences.
It’s a complex issue touching upon law, society, culture, crime, society and public policy. Even if the court doesn’t simply declare marital rape amounts to rape, it will have to find a way out to deal with one of the worst open secrets of Indian society.
