Over criminalisation of marital rape, the Indian government believes it ¡°could open the floodgates of false cases being made with ulterior motives¡±.
The Centre told the Delhi high court that just because other countries, mostly western, have criminalised marital rape does not necessarily mean India should follow them blindly.
Opposing a bunch of pleas seeking to criminalise marital rape in the country, the Centre in its written submissions has told the high court that ¡°India has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalising marital rape¡±.
The government reiterated its stand of 2017, saying that there is a vast diversity in the cultures of Indian states and it is necessary to implead the state governments in the matter to know their opinion to avoid any complications at a later stage.
It said that even in its 172nd report titled Review of Rape Laws, the Law Commission has examined the matter and did not recommend the criminalisation of marital rape.
¡°Removal of exception 2 of Section 375 IPC which consciously would be akin to legislating a separate offence which can be done only by the legislature as per the doctrine separation of power prescribed in the Constitution of India,¡± the written submissions read.
Further, the Centre said that criminalisation of marital rape ¡°could open the floodgates of false cases being made with ulterior motives¡±.
The petitions in the high court challenge Exception 2 to Section 375 of the Indian Penal Code, which states that any forceful sexual act performed by a man on his own wife is not rape as long as she is above 15 years of age.
In its written submissions, the Centre said, ¡°What constitutes marital rape and what does not would need to be defined precisely before a view on criminalisation is taken.¡±
Citing an order in which the Supreme Court had lamented the misuse of dowry and cruelty laws, the Centre argued that "adequate procedural safeguards" would have to be put in place. This, it said, can only be done by the legislature and not by court orders. In addition, the Centre claimed that a court order to criminalise marital rape would be the same as "legislating a separate offence", which is not within the powers of the judiciary.
¡°Making marital rape a cognizable, non-bailable offence would stop all chances of settlement between husband and wife which is possible under Section 498A,¡± the government argued in its submissions. The government also supported the argument of men¡¯s rights groups that there are other laws, including the Domestic Violence Act, which provide for punishment in cases of sexual violence between husband and wife.