Aastha Thakur
Published on: 11 September 2022 at 21:21 IST
A group of applications filed against the divided decision made by a two-Judge Bench of the Delhi High Court on the criminalization of marital rape were postponed by the Supreme Court of India on Friday.
Justices Ajay Rastogi and BV Nagarathna’s bench announced during the hearing that it would tag all related cases together and hear them all on September 16.
When questioned about the specifics of the issue, Attorney Karuna Nundy representing the petitioner All India Democratic Women’s Association (AIDWA) said that the matter had been certified for appeal to the Supreme Court by a joint certificate signed by both judges of the Delhi High Court.
The appeal is made in response to the divided decision reached by a division bench made up of Justices Rajiv Shakdher and C. Harishankar in cases involving the Indian Penal Code’s exemption for marital rape.
An appeal has been filed by AIDWA, a women’s group with 9.6 million members, opposing the Delhi High Court’s decision of May 11, 2022. The exemption to Section 375 of the Indian Penal Code, which exempts forcible sexual contact between a man and his own wife from the crime of rape, was being contested in a number of petitions before the High Court.
According to Justice Rajiv Shakdher, it is illegal to shield the husband from prosecution for the crime of marital rape. He ruled that the exception 2 of the IPCs 375 and 376B was invalid since it violated Article 14.
Justice C. Hari Shankar, however, declared that he disagrees with Justice Shakdher. According to Justice Harisankar, Section 375’s Exception 2 is not unconstitutional and is founded on an understandable difference.
The appeal raises issues regarding the constitutionality of the exception part of Section 375 and its violation of Articles 14, 15, 19, and 21. The plea submits the clause violates the rights privileged to citizens of India and the case of the petitioner holds good merits.
Millions of women have been sexually assaulted legally as a result of the conflict over consent in marital rape that exemption two of 375 of the IPC generated. The petition argued before the Delhi High Court that married women like her should have the ability to hold their husbands accountable for rape.
The plea also asserts that the provision for marital rape shields spouses from a number of offences. The appeal notes that after the 2013 modification, non-consensual sexual actions outside of penile-vaginal intercourse have been included within the purview of Section 375 IPC.
The appeal stated that as a result, a woman who is raped by her husband in 2022 is in a worse situation than a woman under Lord Hills’ decree, which first excused males from marital rape 300 years ago.
“Lord Hill had explicitly clarified that her husband would not be exempt from prostituting his wife or facilitating forced sex by another”.
Since her husband is prohibited from raping his wife, he would unavoidably be excluded from section 376 and other gang rape laws. The plea noted that this is what the Delhi High Court referred to. The appeal plea further emphasised that the women who were raped by their husbands did not receive the same legal protection as other rape victims.
According to the most current review of the National Family Health Survey data from 2015–2016, many married women between the ages of 15 and 19 experienced sexual assault. Over 83% saw their present spouse as the offender, whereas 9% saw a prior husband.
The appeal before the court states that the minor clause that does not initially aim to restrict forced sexual intercourse may be used to bring charges against the spouse who engaged in such conduct. If a woman files a complaint of marital rape under Section 323, 354, or 498 A of the IPC, the police are prevented from gathering crucial evidence of rape, which makes it harder to prove even violations under Section 323 of the IPC.
The plea cites the landmark case of Navtej Singh Johar vs UOI to prove its point that there is no presumption of validity because the IPC is a pre-constitutional law. And AIDWA in its appeal also pointed out that in many cases different high courts has questioned the constitutional vires of the provision.
The appeal also emphasised the necessity to offer immediate relief to women who are compelled to have extramarital sex with their spouses and have virtually no nearby legal options in order to push for temporary relief. The appeal argued that because of the length of time needed to make a judgement, spouses across the nation will continue to be raped with impunity.
Because of the MRE, numerous spouses experience daily incalculable bodily, mental, and emotional harm while their husbands escape punishment.
“The Appellant submits that justice requires for married women to be allowed to prosecute their husbands under Section 375 of the IPC.”
Another case of SG Vombatkere vs UOI, in accordance with Section 124 of the IPC, the Supreme Court had delayed the filing of fresh FIRs, the continuing of investigations, and other coercive actions.
The appeal hopes that a similar direction would be granted in this petition. For these reasons, the appeal requested that the marital rape provision in Section 375(2) be suspended.
Additionally, the suit asks that some statements made by the Delhi High Court be deleted. Regarding the trauma experienced by rape victims, the High Court had ruled that women do not experience the same level of fury when made to have sex with their spouses as they do with strangers. According to the Court, forced sex during a marriage is a sign of marital discord.
“….remarks in this vein maybe interpreted as belittling the trauma of the victims of marital abuse and seen as a kind of endorsement of the view that forceful sexual intercourse in a marriage is not a big deal.”
