Marital Rape To Remain Condoned Until It Becomes Explicit Offence: What Petitioner Told HC

Marital rape will remain condoned until it becomes an explicit offence and such declaration would recognise that marriage is not a universal license to ignore consent, two NGOs argued before the Delhi High Court.

Counsel appearing for petitioner NGOs RIT Foundation and All India Democratic Women's Association submitted that specific labelling of the offence would not only deter it but also promote the boundaries of the conjugal right to sex concerning the bodily integrity of wives.

A bench headed by Justice Rajiv Shakdher was hearing a batch of petitions to strike down the exemption from prosecution for the offence of rape granted to husbands under the Indian Penal Code.

"Constitutional goal of equal respect and dignity to all"

Lawyer Karuna Nundy, appearing for the petitioner NGOs, said that the court's declaration criminalising marital rape would go a long way in realising the constitutional goal of equal respect and dignity to all.

Not only do consequences to a specifically labelled offence deter it, but they also elevate the consciousness of those who understand where the boundaries are, she said. Relying on a Supreme Court's decision, Nundy contended that women cannot be treated as a commodity and marriage did not make a rapist a non-rapist.

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"The declaration of a right by a court has a powerful force. Until marital rape becomes an explicit offence it will remain condoned. This case is about the moral right of a married woman to refuse unwanted forcible sexual intercourse. It is about respecting the right of a wife to say no and recognising that marriage is no longer a universal license to ignore consent," the lawyer said as she argued that the exception created a fiction of consent on part of the wife which gives immunity to the husband.

In the written submissions, the petitioners have said that the marital rape exception violates Articles 14, 15, 19(1) (a), and 21 as it takes away a married woman's ability to say a joyful 'Yes' to sexual intercourse. It added that the ground that criminalising marital rape would destroy the institution of marriage is unacceptable as marriage is not institutional but personal and nothing can destroy the 'institution' of marriage except a statute that makes it illegal and punishable.

Criminalising marital rape is a tool for harassing husbands

In its 2017 affidavit, the Centre had submitted 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 husbands. However, earlier this month, Solicitor General Tushar Mehta told the high court that the Centre was considering a constructive approach to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.

He had said criminalisation of marital rape involved family issues as well as the dignity of a woman and cannot be looked at from a microscopic angle and sought some time to respond with the government's stand.

Senior advocates Rebecca John and Rajshekhar Rao, who were earlier appointed as amicus curiae, have contended that the marital rape exception is unconstitutional and ought to be struck down.

"Could open floodgates of false cases"

Over criminalisation of marital rape, the Indian government believes it ¡°could open the floodgates of false cases being made with ulterior motives¡±.

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Last week, 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¡±.

¡°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.

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