Mitali Palnitkar
Published On: January 08, 2022 at 18:05 IST
On January 7, 2022, the Delhi High Court was told that Marital Rape was the biggest form of Sexual Violence against women and that an argument in favour of wife’s assumed consent was untenable. It was contended that the families, the Police Authorities failed to come up for helping the Marital Rape survivors.
The Bench comprising of Justice Rajiv Shakdher and Justice C Hari Shankar were hearing Petitions that sought Criminalization of Marital Rape. NGOs RIT Foundation, All India Democratic Women’s Association, and a man and a woman filed the Public Interest Litigations which sought to strike down the exception under the Indian Rape Law which is granted to husbands.
Senior Advocate Colin Gonsalves, who represented the woman Petitioner stated, “Marital Rape is the biggest form of Sexual Violence which happens in the confines of our homes. How many times Rape take place in the institution of Marriage and is never reported? This figure is not reported or analyzed.” He argued that Marital Rape was recognized as an offence by Courts all over the world.
Nandita Rao, the Delhi Government Lawyer stated, “Marital Rape is a Crime of cruelty in India. Married women and unmarried women are placed differently under every single Law.” She stated that one of the Petitioners was subjected to Marital Rape repeatedly and First Information Report (FIR) was registered under Section 498A of Indian Penal Code (IPC) which deals with cruelty to married woman by her husband or relatives which is likely to drive her to suicide or to cause grave injury or danger to life, limb or health (mental or physical) of the woman.
Gonsalves stated an observation by the Nepal Supreme Court that an act of Rape of wife was not exempted in the Hindu religion. He also highlighted a United Nations report which showed that Sexual Violence between married couples was prevalent in India.
In 2018, in Delhi, a Bench headed by then Chief Justice Gita Mittal was told by the Delhi Government that indulging in sexual relations without willingness of other (spouse) was an offence under IPC and woman could refuse it by the right to bodily integrity and privacy under Article 21 of Constitution. The Union Government stated, Criminalizing Marital Rape might “destabilize the institution of Marriage and an easy tool for harassing the husbands.”
The Constitutionality of Exception 2 to Section 375 Indian Penal Code was challenged by Petitioner NGO on the ground of discrimination against married woman who are Sexually Assaulted by their spouse. The Case will be heard on January 10, 2022.
Also Read: Criminalization of Marital Rape