SC seeks Centre’s response on pleas seeking criminalisation of marital rape

• The Supreme Court sought a response of the Centre on a batch of petitions pertaining to criminalisation of marital rape.

• A bench comprising Chief Justice D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala asked the Union government to file its response on the issue by February 15 and the final hearing on the pleas would commence from March 21.

• The Delhi High Court on May 11, last year had delivered a split verdict on the issue.

• Some petitioners have challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on grounds that it discriminated against married women who are sexually assaulted by their husbands.

Marital rape exception clause in IPC

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

• 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.

• A UN report has noted that, in more than 50 countries, including the United States, Nepal, Britain and South Africa, it is a crime for a husband to rape his wife, but that is not the case in most of Asia, where campaigners are pushing for legal reform.

• Women’s rights activists have filed petitions seeking a direction to make it a criminal offence.

• In August 2017, the Centre filed an affidavit filed in Delhi High Court in response to pleas seeking criminalising marital rape.

• It said that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.

What were the points said by the Centre?

• Marital rape has not been defined in a statute or law, while the offence of rape is defined under section 375 IPC. Hence, defining marital rape would call for a broad based consensus of the society.

• What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken.

• The Supreme Court and various High Courts have already observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of IPC.

• Merely deleting the exception which provides protection to husbands from prosecution for the offence of rape may not stop marital rape. Moral and social awareness plays a vital role in stopping such an act.

• The fact that other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc, and these should be considered carefully before criminalising marital rape.

• The affidavit also referred to the reports of Law Commission and Parliamentary Standing Committee on Home Affairs, saying they have examined the matter and did not recommend criminalisation of marital rape.

• Citing the Justice J. S. Verma committee report on ‘Amendments to Criminal Law’, it said it was recommended that the exception to marital rape be removed, but it also pointed out that it is also important that legal prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police officers and those in society generally.

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