The Delhi government on Friday told the Delhi High Court that marital rape is already covered as a crime of cruelty under the Indian Penal Code.
The Delhi government’s counsel stated before the court hearing a batch of petitions seeking criminalisation of marital rape that the courts have no power to legislate any new offence and claimed that married women and unmarried women were placed differently under every single law.
“Marital rape is a crime of cruelty in India. Married women and unmarried women are different under every single law,” Delhi government lawyer Nandita Rao said.
Ms Rao also said that even in the case of one of the petitioners, who claimed to be a victim of repeated marital rape, the FIR stood registered for an offence under Section 498A IPC for necessary action.
Section 498A of IPC deals with cruelty to a married woman by her husband or his relatives where cruelty means any wilful conduct which is of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.
A bench of Justices Rajiv Shakdher and C Hari Shankar was dealing with PILs by NGOs RIT Foundation, All India Democratic Women’s Association, a man and a woman seeking striking down of the exception granted to husbands under Indian rape law.
Senior advocate Colin Gonsalves, representing the petitioner woman, argued that courts all over the world have recognised marital rape as an offence and abrogated the concept of a wife’s irrevocable consent for establishing sexual relations.
The senior lawyer stated that the value system and women rights have evolved with the passage of time and relied on a series of judgements passed by courts in the United Kingdom, United States, Canada, European Union and Nepal as well as international treaties to submit that an argument of a wife’s assumed consent was untenable.
He said that the Nepal Supreme Court has observed that the Hindu religion did not exempt the “heinous act of rape of a wife”.
Mr Gonsalves further objected to the notion that marital rape was a “western concept” and highlighted a United Nations report which indicated the prevalence of sexual violence between married couples in certain Indian states.
“Marital rape is the biggest form of sexual violence which happens in the confines of our homes. How many times does rape take place in the institution of marriage and is never reported? This figure is not reported or analysed,” said the senior lawyer who contended that neither the families nor the police authorities come to the help of the victims.
In 2018, the city government had told the predecessor bench hearing the case — headed by then Acting Chief Justice Gita Mittal — that wherever a spouse indulged in sexual relations without the willingness of the other, it was already an offence under IPC and a woman was entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy under Article 21 (protection of life and personal liberty) of the Constitution.
The central government, in its affidavit filed in the case, has 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.
The petitioner NGO has challenged the constitutionality of section 375 IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.
The hearing in the case will continue on January 10.