The court took seven years to hear petitions seeking to criminalize marital rape before coming up with a split verdict.
The court took seven years to hear petitions seeking to criminalize marital rape before coming up with a split verdict.
the story So Far: The Delhi High Court on Wednesday Divided verdict on decriminalizing marital rape in country. While Justice Rajiv Shakdher struck down exception 2 of Section 375 of the Indian Penal Code, which criminalises rape within marriage, Justice C. Hari Shankar upheld its validity. Exception 2 to section 375 states that “sexual intercourse or sexual act by a man with his wife, the wife not being less than fifteen years of age, is not rape”. In October 2017, the Supreme Court of India raised the age to 18 years.
It took the court seven years to hear the petitions seeking to declare marital rape as an offence.
What is Section 375 of the Indian Penal Code (IPC)?
Section 375 of the IPC defines acts which constitute rape by a man. However, this provision also stipulates two exceptions. In addition to making marital rape free from crime, it stipulates that medical procedures or interventions shall not be treated as rape.
What were the petitions filed in the case?
In India, there are no legal provisions defining “marital rape”. The petitions challenging the exception to Section 375 of the IPC were filed by the NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim.
An NGO named Men Welfare Trust has opposed the petitions and argued that intercourse between a husband and wife cannot be equated to non-marital relations as the issue of consent cannot be divorced from the context of marriage. Is.
What is the time limit for hearing in the case?
The first petition to declare marital rape as an offense was filed in the Delhi High Court in 2015. In 2017, the central government filed an affidavit in the matter, stating that criminalizing marital rape “could destabilize the institution of marriage” and become a potential means to harass husbands. ,
The trial of the case began in January 2022. The Center filed an additional affidavit in the matter, saying it can assist the High Court only after consulting all stakeholders, including state governments. The Center had said, “The absence of any such consultation process by the executive/legislature may result in some injustice being done to one section or the other”.
Solicitor General Tushar Mehta had argued that the matter required a “holistic approach” as it involved a sensitive “socio-legal issue”.
On February 1, 2022, the Center said it was “reconsidering” its earlier position on the matter mentioned in the old affidavit and sought time to state its stand.
The High Court gave the government two weeks on February 7 to clarify its stand on the matter. Court on February 21 rejected the request of the central government To give more time to the Center to explain its stand and to reserve its decision on various arguments in the matter.
What is the history of marital rape law in India?
The Domestic Violence Act, 2005 indicates marital rape by any form of sexual abuse in a live-in or marriage relationship. However, it only provides for civil remedies. There is no way for marital rape victims in India to initiate criminal proceedings against their perpetrator.
The Delhi High Court has been hearing arguments in the matter since 2017. However, this is not the first time that the issue of marital rape has been raised in the country.
The need to remove this marital rape exception was rejected by the Law Commission of India in 2000, while considering several proposals to reform India’s laws on sexual violence.
Following nirbhaya gang rape And in the 2012 murder case, the Justice JS Verma committee was tasked with proposing amendments to India’s rape laws. While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, some suggestions, including marital rape, were not acted upon.
This issue has also been raised in the Parliament. Haribhai Parathibhai Choudhary, the then Minister of State for Home Affairs, when questioned in the Parliament session in 2015 The idea of declaring marital rape as a crime rejected By saying that “marital rape cannot be enforced in the country as marriage was considered a sacrament or sacrament in the Indian society”.
In line with the same logic, Union Minister of State Krishna Raj said in 2017 that the central government was against the removal of the exception.
How did the exception on marital rape come into the IPC?
IPC was implemented in India in 1860 during the British colonial rule. Under the first version of the rules, the marital rape exception was applicable to women over the age of ten. In 1940, this age was raised to 15. In October 2017, the Supreme Court ruled that sex by a man with his wife, the wife not being less than eighteen years of age, is not rape.
During a hearing on the matter in January 2022, amicus curiae Rebecca John argued that the IPC is based on an 1847 draft by Lord Macaulay, chairman of the first Law Commission set up in colonial-era India. The exception in the draft decriminalized marital rape without any age limit.
Senior advocate John said that the provision is an age-old idea which implies the consent of married women and protects the marital rights of the husband. the idea of implied consent comes from Hale’s principleIt was given by the then British Chief Justice Matthew Hale in 1736. It states that a husband cannot be guilty of rape, because “the wife by their mutual marital consent and contract has so left the husband as herself”.
Another colonial-era convention influenced the Extraordinary Clause on Marital Rape, with its roots in the Doctrine of the Confession. According to the Doctrine of Coverture, a woman has no personal legal identity after marriage.
Notably, the Doctrine of Coverture found a mention during the hearing when the Supreme Court of India overruled it. Adultery as a criminal offense in 2018. Justice Indu Malhotra held that Section 497, which classifies adultery as an offence, is based on the principle of principle. This principle, though not recognized by the Constitution, holds that a woman loses her identity and legal rights with marriage, a violation of her fundamental rights.
How is marital rape treated around the world?
According to data from Amnesty International, 77 out of 185 (42%) countries criminalization of marital rape through law. In other countries, it is either not mentioned or explicitly excluded from rape laws, both of which can lead to sexual violence.
Ten countries such as Ghana, India, Indonesia, Jordan, Lesotho, Nigeria, Oman, Singapore, Sri Lanka and Tanzania explicitly allow marital rape of a woman or girl by her husband.
While 74 countries allow women to file complaints against their husbands, 34 out of 185 have no such provision. About a dozen countries allow rapists to avoid prosecution by marrying their victims.
The United Nations has urged countries to end marital rape by closing legal loopholes, saying “home is one of the most dangerous places for women”.