Plea in High Court for making marital rape a ground for divorce

A plea was filed in the Delhi High Court on Wednesday seeking direction to the Centre to frame guidelines for registration of FIR for marital rape as also laws for making it a ground for divorce.

The PIL sought that there should be a clear guideline for registration of cases related to marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the authorities concerned can be fixed.

The plea, likely to be listed next week, was filed after the Supreme Court on Monday refused to entertain it and asked the petitioner, advocate Anuja Kapur, to approach the high court for relief.

She also sought direction to the government for fixing appropriate punishment/ penalties for violation of the guidelines and laws to be framed and enacted respectively.

“Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honour and dignity of a human being, and reduces her to a chattel to be utilised for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury. Medical evidence proves that rape has severe and long-lasting consequences for women,” the plea said.

Kapur said in her plea that at present there is an ambiguity in the implementation of the context of marital rape as a ground of punishment or penalty during the registration of such a case in ambit of law.

“There is a lot of confusion with the concerned authorities that under which law they should register an FIR / case related to marital rape. There should be a clear guideline for registration of the case of marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the concerned authorities can be assigned and, penalties and punishments be awarded to safeguard the fundamental right guaranteed by the Constitution and dignity of the woman in marriage,” the plea said.

Since marital rape at present is not a crime, there is no FIR registered by a wife against her husband in any police station, it said.

Rather, it is being compromised by the police authorities to maintain the sanctity of the marriage between the victim and the husband, it added.

“As marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937 and Special Marriage Act, 1954, it cannot be used as a ground for divorce and cruelty against husband,” it said.

Marital rape as a ground for divorce: Supreme Court asks petitioner to approach High Court

The Supreme Court on Monday refused to entertain a plea seeking a direction to the Centre to frame appropriate guidelines for registration of FIR for marital rape and frame laws for making it a ground of divorce.

A bench of Justices S A Bobde and B R Gavai asked the petitioner advocate Anuja Kapur to approach the high court for the relief. Kapur then withdrew her plea.

In the plea, she contended that there should be a clear guideline for registration of cases related to marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the authorities concerned can be fixed.

She also sought direction to the government for fixing appropriate punishment/penalties for violation of the guidelines and laws to be framed and enacted respectively.

“Marital rape is no less an offence than murder, culpable homicide or rape per se. It denigrates the honour and dignity of a human being, and reduces her to a chattel to be utilised for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury. Medical evidence proves that rape has severe and long-lasting consequences for women,” the plea said.

Kapur in her petition contended that at present there is an ambiguity in the implementation of the context of marital rape as a ground of punishment or penalty during the registration of such a case in ambit of law.

“There is a lot of confusion with the concerned authorities that under which law they should register an FIR/case related to marital rape. There should be a clear guideline for registration of the case of marital rape under framed guidelines and laws, so that accountability, responsibility and liability of the concerned authorities can be assigned and, penalties and punishments be awarded to safeguard the fundamental right guaranteed by the Constitution and dignity of the woman in marriage,” it said.

The plea said that since marital rape at present is not a crime, there is no FIR registered by a wife against her husband in any police station. Rather, it is being compromised by the police authorities to maintain the sanctity of the marriage between the victim and the husband, the plea said.

“As marital rape is not a ground for a divorce in Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937 and Special Marriage Act, 1954, it cannot be used as a ground for divorce and cruelty against husband,” it said.

Marital rape offence under penal law: AAP govt to HC

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.

How did Par create an exception when consent age is 18 yrs: SC

How did Par create an exception when consent age is 18 yrs: SC
How did Par create an exception when consent age is 18 yrs: SC

The Supreme Court today posed a query to the Centre how Parliament could create an exception in the penal law declaring that intercourse or a sexual act by a man with his wife, aged between 15 and less than 18 years, is not rape, when the age of consent is 18.

The apex court said it did not want to go into the aspect of marital rape, but when the age of consent was 18 years for “all purposes”, why was such an exception made in the Indian Penal Code.

“We do not want to go into the aspect of marital rape.

That is for Parliament to see if they want to increase or decrease the age of consent. But once the Parliament decided that we have fixed 18 years as the age of consent, can they carve out an exception like this,” a bench of Justices Madan B Lokur and Deepak Gupta asked the Centre.

“When you (government) recognise the age of consent to be 18 years for all purposes, then why this exception,” it asked.

Section 375 of the IPC, which defines the offence of rape, has an exception clause that says intercourse or sexual act by a man with his wife, not below 15 years, is not rape.

However, the age of consent

Responding to the query, the Centre’s counsel said if this exception under the IPC goes, then it would open up the arena of marital rape which does not exist in India.

“After due thought and consideration, Parliament decided to keep it (exception) intact,” the counsel said while referring to some verdicts delivered by the high courts in which 15 years was held to be “acceptable” age for marriage.

He referred to the concept of age of puberty among Muslims for the purpose of marriage and said these aspects have been deliberated upon by Parliament before arriving at a conclusion.

During the hearing, the bench referred to the aspect of child marriage and said that despite there being a law which held it illegal, the practice was still going on.

The apex court observed that child marriage cannot go on like this just because this illegal practice was assumed to be legal and going on for ages.

“Whether or not it (child marriage) is a social reality, for 70 years we have not been able to remove it,” the bench said.

When the Centre said child marriage was happening in several countries, the bench observed, “but that is not the justification”.

The court also said there was a “conflict” between this exception under the IPC and under the provision of the Protection of Children from Sexual Offences Act (POCSO), 2012.

The bench, on hearing the submissions, reserved its judgement on the pleas questioning the validity of a provision permitting a man to have physical relationship with his wife, even if she was aged between 15 and 18 years.

The Centre had yesterday told the court that Parliament, in its wisdom, had taken a conscious decision to keep the age limit of voidable marriage between 15 and 18 years in case of girls.

It had said that the legislature kept in mind the socio- economic conditions in the country and was aware of international conventions while deciding to keep the voidable clause in case of child marriages.

One of the petitioners had argued that the exception to section 375 of the IPC was defeating the purpose of Prohibition of Child Marriage Act and was also in violation of international conventions to which India was a signatory.

The petitioners have sought a direction to declare exception 2 to Section 375 of IPC as “violative of Articles 14, 15 and 21 of the Constitution to the extent that it permits intrusive sexual intercourse with a girl child aged between 15 and 18 years, only on the ground that she has been married.”

They have also referred to the provisions of the POCSO Act and said these were contrary to the IPC provision.

( Source – PTI )

Delhi HC to hear NGO’s plea opposing marital rape

Delhi HC to hear NGO's plea opposing marital rape
Delhi HC to hear NGO’s plea opposing marital rape

The Delhi High Court today agreed to hear a plea by an NGO, representing men victimised by alleged misuse of gender laws, opposing several petitions to make marital rape a criminal offence.

A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar allowed the intervention application by NGO, Men Welfare Trust, and allowed it to address the court.

The court was hearing petitions seeking declaration of Section 375 (offence of rape) of the IPC as unconstitutional on the ground that it discriminated against married women being sexually assaulted by their husbands.

The hearing in the matter would continue tomorrow.

Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.

The NGO said the issue affected a large number of men who were “vulnerable” in getting victimised at the hands of women who file “false” rape and domestic violence cases.

“The applicant (NGO) wishes to argue that the existing laws are very much capable of dealing with the cases of sexual abuse of women and there is no need to either bring a fresh law to deal with it, nor is there a requirement to withdraw the protection granted to husbands provided under Section 375 of the IPC,” the plea, filed through NGO’s president Amit Lakhani and vice president Ritwik Bisaria, said.

It claimed that when a person gets married, he or she gives consent to the spouse to have sex and any such sexual act cannot be termed as rape.

If there is physical harm to either of the parties, then it may be called sexual assault for which there are laws already in place, it said, adding that in case of divorce or separation, the woman effectively withdraws her consent for having sexual relations with her estranged husband.

“A mere comparison between the marriages solemnised in the Indian and western societies makes it clear that in Indian society, marriage is considered to be a sacred relationship with aim to procreate and lead a happy married life. The marriages in the western world are considered to be a contract between the husband and the wife.

“Accordingly, the concept of ‘marital rape’ cannot apply in Indian context. And if there is an abuse of sexual nature, Indian laws have already provided a remedy to deal with it,” the plea said.

It claimed removal of protection given to husbands under section 375 IPC that did not consider sexual intercourse with a minor wife above 15 years of age as rape, will result in a law of such nature that the chances of its misuse will be so high that “innocent husbands shall be left with no remedy and would be subjected to cruelty on part of wives”.

Citing the statistics of National Crime Record Bureau (NCRB), the plea said 62,000 married men commit suicide every year, which is more than double the suicides by women, with domestic including martial issues being the single largest reason.

This makes “India as the suicide capital of the world,” it claimed.

The high court had earlier asked the Centre to spell out its stand on petitions seeking to make marital rape a criminal offence.

It has agreed to examine the issue raised in 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 did not consider sexual intercourse with a minor wife, above 15 years of age, as rape.

The exception in section 375 of the IPC which deals with the offence of rape, was brought by way of the Criminal Law Amendment Act of 2013, which was enacted after the horrific gangrape case of December 16, 2012.

Earlier, the Centre had defended its legislation, saying child marriages were taking place in India and the decision to retain a girl’s minimum age as 15 years to marry was taken under the amended rape law to protect a couple against criminalisation of their sexual activity.

( Source – PTI )

Delhi HC seeks govt’s stand on pleas for making marital rape an offence

Delhi HC seeks govt's stand on pleas for making marital rape an offence
Delhi HC seeks govt’s stand on pleas for making marital rape an offence

The Delhi High Court today asked the Centre to spell out its stand petitions seeking to make marital rape a criminal offence.

Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.

A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the Centre to respond to petitions seeking declaration of Section 375 of the Indian Penal Code (IPC) as unconstitutional on the ground it discriminated against married women being sexually assaulted by their husbands.

The matter would come up for further hearing on August 28.

The bench agreed to examine the issue raised in PILs by NGOs RIT Foundation, All India Democratic Women’s Association and a man and a woman, who sought striking down of the exception in the Indian penal law that did not consider sexual intercourse with a minor wife, above 15 years of age, as rape.

The exception in section 375 of the IPC which deals with the offence of rape, was brought by way of the Criminal Law Amendment Act of 2013, which was enacted after the horrific gangrape case of December 16, 2012.

The petitioners have claimed that the exception was “unconstitutional and violative of the Right to Equality guaranteed to married women under Article 14 of the Constitution as it decriminalises rape when the perpetrator is the lawfully wedded husband of the victim.”

One of the NGOs has claimed that marital rape has been criminalised in almost all major common law jurisdictions throughout the world, including in the United States, the United Kingdom, South Africa and Canada.

The Centre had defended its legislation, saying child marriages were taking place in India and the decision to retain a girl’s minimum age as 15 years to marry was taken under the amended rape law to protect a couple against criminalisation of their sexual activity.

The Centre had said that husbands have been protected from prosecution for any sexual act with their wives who were above 15 years of age in view of the “social reality” of child marriages in India.

“Although the age of consent is 18 years and child marriage is discouraged, marriage below the permissible age is avoidable, but not void in law on account of social realities,” it had told the court earlier.

A man, charged with forcibly having unnatural sex with his wife, has also approached the high court claiming he is protected from prosecution since “marital rape” is not an offence in India, according to the conjugal laws.

( Source – PTI )

Refusal to criminalise marital rape: Activists

marital rapeGovernment’s refusal to criminalise marital rape has been termed as “regressive” by several women rights activists but experts supporting the Centre’s stand feel there is no need to tinker with the law as it might be “misused” by some to settle scores.

The issue, which did not garner favour from the Supreme Court, has triggered a fresh debate in the wake of Minister of State for Home Haribhai Parathibhai Chaudhary’s statement in Parliament that the concept of marital rape cannot be applied in India where marriage is considered as a “sacrament”.

“Parliament is being regressive about it. Even Justice J S Verma Committee had recommended criminalising marital rape. India is ready but Parliament is not,” senior advocate Rebecca John said. Her view was shared by activists Ranjana Kumari and Vrinda Grover who vouched for a law protecting married women from forced sex with their spouse.

They said lawmakers do not want to give women their right against exploitation, even at the hands of their husbands.

However, this view did not find favour with some jurists who said criminalisation of marital rape will be “dangerous” in today’s scenario where instances of false implications of husband and in-laws by women are in abundance.

Two retired judges — S N Dhingra and R S Sodhi — of the Delhi High Court said it will trigger misuse of law by women to settle scores.

Differing with them and supporting the women activists, senior advocate Colin Gonsalves, who took up the issue in the apex court, alleged the government was headed by “men with anti-women thinking”.

“Our government is conservative, anti-social and backward looking. It is headed by men with anti-women thinking,” he alleged, and asked “when there is law to protect women against domestic violence, then why can’t there be one for marital rape?”

According to a UN report — ‘The 2011 Progress of the World’s Women: In Pursuit of Justice report’ — marital rape is an offence in 52 countries, including the US, Australia, South Africa, Canada, Denmark and France

 

Non-recognition of marital rape hypocrisy in law: Court

Observing that India is yet to recognise woman’s right to control marital intercourse as a core component of equality, a court here said absence of provision to deal with cases of marital rape as an offence exposes gross double standards and hypocrisy in law.

The court observation came Tuesday while declining bail to a man, a resident of west Delhi and accused for raping his wife and forcing her to perform unnatural sex. The victim said the man used to show her adult videos and also physically hurt her by biting her. The order was released Wednesday.
The court said: “It is ironical that we often treat such a woman or the wife who raises her voice against sexual perversity a suspect.”

“Non-recognition of marital rape in our nation set upon the bedrock of equality is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women and hence the need to address the issue by both statutory law as well as judicial pronouncements,” Additional Sessions Judge Kamini Lau said.
“Reluctance of the legal system to recognise marital rape as a crime and then to prosecute except in extreme cases is a big problem and what is more worrisome is the fact that when it comes to marital rape and sexual acts within a marriage, our society either visualises this as an incident provoked by a wife who refuses to perform her duty or accepts it as something normal and chooses to look the other way,” Lau said.

“It is unfortunate that we in India are yet to recognise woman’s right to control marital intercourse as a core component of equality,” the court said.
The court observed that allegation levelled by the victim is correct as she is the best witness in the case and was married with accused eight months ago.

“…there appears to be something seriously wrong with the accused and so also our society with sexual perversity pervading the system where lakhs of women suffer this kind of sexual violence and perversity in silence,” it said.

“It is the crying need of hour to seriously recognize and address this problem.” “Its rape when a man forces himself sexually upon a woman whether he has a licence by marriage law to do it or not,” the court observed.

It added that woman has full autonomy over her body and recognition of marital Rape and offensive sexual acts and raising our voices against it, is the first crucial step towards achieving substantial equality between man and woman.