The AAP Government today told the Delhi High Court that marital rape, where a spouse indulges in sexual relations without the willingness of the other, is already an offence under a penal provision.
The AAP government submitted that a woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is secured to all women, married or unmarried, under Article 21 (protection of life and personal liberty) of the Constitution.
The submissions were made before a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar during the hearing of a bunch of pleas seeking criminalisation of marital rape.
Delhi Government Additional Standing Counsel Nandita Rao said “marital rape is an offence under section 498A of IPC and the language of which is similar to personal law and the domestic violence law”.
Section 498A of IPC deals with cruelty to a married woman by her husband or his relatives where cruelty means any wilful conduct which is of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman.
She said marital rape is one of the grounds of cruelty for divorce under the personal law.
Rao contended that a court cannot add an offence or impose punishment under the law as it is the prerogative of the legislature.
The submissions assume significance as one of the reasons given by the Centre for not making marital rape a criminal offence was that it could be “misused”.
The Centre has maintained that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and become an easy tool to harass the husbands.
The court was hearing PILs by NGOs RIT Foundation, All India Democratic Women’s Association and a man and a woman, who have sought striking down of the exception in the Indian penal law that does not consider sexual intercourse with a minor wife, above 15 years of age, as rape.
Advocate Karuna Nandy, appearing for the NGOs, had earlier argued that misuse of a penal provision cannot be an argument for not criminalising an act and there might be false complaints lodged by women, but such cases were rare.
The NGOs had said around 20 million married women in India were victims of marital rape every year.
The Supreme Court, in a historic verdict in October last, had held that sexual intercourse with a girl below 18 years of age, even by the husband, would amount to rape.
It, thus, had read down a provision in the Indian Penal Code of 1860, exempting males from being tried for rape if the wives were between the age of 15 and 18 years.
The top court’s verdict is likely to have a ramification in the petition pending before the high court.
In the original petition before the high court, the NGOs had highlighted that the provision under the IPC did not consider non-consensual sexual intercourse with a wife, above 15 years of age, as rape.
The high court is also hearing two intervention applications, one in support of pleas to make marital rape an offence and the other opposing it.
The NGOs’ counsel had said that they have challenged the constitutionality of IPC section 375 on the ground that it discriminated against married women being sexually assaulted by their husbands.
