Apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code (IPC), the Delhi High Court was told on Tuesday.
Senior advocate Rajshekhar Rao, who is assisting the court as an amicus curiae in a batch of petitions to criminalise marital rape, said that there was always a possibility of misuse of criminal offences and had the object of the legislation been to protect the institution of marriage, wives would not have been given the power to prosecute husbands for any offence including lesser sexual offences.
The amicus told the bench of Justice Rajiv Shakdher and C Hari Shankar that the “court cannot be a mute spectator” and the objection that Parliament “will take care” of the marital rape exception because it enacted it cannot be accepted.
The senior advocate emphasised that it is for the court to assess if the exception withstands the test of Articles 14 (equality) and 21 (right to life) of the Constitution especially given the law protecting minor wives in case of forceful intercourse by husband. “I do not believe that it is possible today for anyone to say that there is any justifiable reason in treating the status of marriage between two parties as being sufficient to warrant denying the wife the ability to prosecute her husband for the offence of rape," Mr Rao said.
“If there is a possibility of misuse, then section 376 (rape) of IPC can be misused against random strangers. Section 498A (cruelty) of IPC, as your lordships, have taken note that perhaps there is misuse, but your lordships have found a way to temper,” he added.
The amicus also submitted that the offence of rape under the Indian Penal Code recognised “consent of a woman” and the entire act is viewed “from the perspective of a woman” who has the right to privacy and bodily integrity.
The Supreme Court has recognised the right of the woman to say no but the effect of the statute is that the consent of the wife has been rendered irrelevant, he said The amicus also relied on Supreme Court decisions to contend that constitutional morality ought to trump societal morality.
It is time that the law tells the wife that "marzi hai aapki, aakhir var hai aapka (It is your choice as, after all, it is your husband)," the amicus said.
Additional Solicitor General Chetan Sharma, appearing for the Centre, told the court that an “informed consultation process” to examine the issue of criminalising marital rape has been “fast-tracked”.
On January 17, the court had asked the Centre to clarify its in-principle position on the issue of criminalising marital rape after the government sought time to formulate and place its “considered stand”.
The Centre, on January 13, had told the high court that it was considering a “constructive approach” to the issue and has sought suggestions from several stakeholders and authorities on comprehensive amendments to the criminal law.
The bench is hearing PILs filed 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 the Indian rape law.
The amicus curiae had earlier submitted that a married woman could not be denied the right to prosecute her husband if she believed that she was raped and in case of denial of a conjugal relationship, the remedy before the spouse is to file a plea for restitution and “not force himself upon her”.
The central government, in its earlier 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 Delhi government has told the court that marital rape was already covered as a "crime of cruelty" under IPC.
The petitioners have challenged the constitutionality of the marital rape exception under section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.
Hearing on the case would continue on January 19.
