The government has taken the position that marital rape cannot be criminalised.
Making marital rape a criminal offence will make men vulnerable to harassment by their wives, the Central government told the Delhi High Court today in response to a clutch of petitions by women's organisations who want marital rape to be legally recognized and penalized.
The Centre said in an affidavit that marital rape may become an easy tool for harassing the husband and that there can be no lasting evidence in the case of sexual acts between a man and his own wife. It has argued for status quo, also saying that making criminalising marital rape would "destabilise the institution of marriage".
Women's organisations have sought that Section 375 of the Indian Penal Code, the law that defines rape, should be declared unconstitutional, arguing that it discriminates against married women being sexually assaulted by their husbands. Section 375 has an "exception provision" which states that the rape law will not apply to assault or sexual intercourse by a husband on his wife who is above the age of 15 years.
The exception clause in the law was brought by way of an amendment in 2013, as more stringent rape laws were framed months after the brutal gangrape of a medical student in a moving bus on December 16, 2012.
For years, women's organisations have been demanding that the rape of a woman by a husband be recognized as a criminal act that carries penalties. The High Court had asked the Centre to spell out its stand on the petitions it is hearing. The Centre had earlier this year said it cannot criminalise marital rape as "India has its own unique problems due to uneven literacy, economic and social diversity."
The government's view has been endorsed by a parliamentary panel report, which has said that the entire family system will be under great stress if marital rape is brought under law.
Today, Swaraj Kaushal, former Governor of Mizoram, senior advocate and husband of foreign minister Sushma Swaraj, tweeted, "There is nothing like marital rape. Our homes should not become police stations...There will be more husbands in the jail, than in the house."
The High Court has also agreed to hear a petition by an NGO opposing the plea to make marital rape a criminal offence. The NGO says it represents men who are victims of alleged misuse of gender laws. The petition says a large number of men are "victimised" by women who file "false" cases of rape and domestic violence.
The new petition claims that when a person gets married, he or she gives consent to the spouse to have sex and any such sexual act cannot be termed as rape.
"We have given a list of 51 countries that have done away with exceptions to the rule of leaving husbands out of the purview of rape. The American legislation has said very clearly that we don't need more than one evidence to substantiate some crimes like rape," said Colin Gonsalves, senior lawyer representing RIT foundation, the original petitioner in this case.