Delhi: HC seeks Centre's response on plea against marital rape

New Delhi, July 18 (SURYAA): The Delhi High Court on Tuesday asked the central government to file its response to a bunch of petitions challenging the exception in law that protects a husband from being tried for the rape of his wife.

A division bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar asked the advocate representing men's rights activists, who are opposing the petitions, if domestic violence had penal circumstances, "how do you justify the exception?"

The bench was hearing petitions filed by NGO RIT Foundation, All India Democratic Women's Association and a marital rape victim, challenging the exception to rape under Section 375 and Section 376B as unconstitutional.

The plea challenged the Indian Penal Code's Section 375, saying it does not consider sexual intercourse of a man with his wife as rape.

Section 375, which defines "rape", also contains the exception provision which states that the rape law would not apply to assault or sexual intercourse by a husband on his wife over 15 years of age. Section 376B deals with sexual intercourse by a man with his wife during separation.

One of the petitions also challenges Section 198B of the Criminal Procedure Code, which states that no court shall take cognizance of an offence punishable under Section 376B of the IPC where the persons are in a marital relationship.

Senior counsel Colin Gonsalves, appearing for one of the petitioners, provided a list of 51 countries which have criminalised marital rape. The advocate said even Nepal, a Hindu state, framed laws against marital rape way back in 2002.

The advocate said that the prevailing law excluded marital rape as a criminal offence and that these sections were violative of the rights of married women.

According to the petitioners, the law as it stands today amounts to a state-sanctioned licence granted to the husband to violate the sexual autonomy of his lawfully wedded wife and is therefore, a violation of the Right to Privacy guaranteed to the wife under Article 21 of the Constitution.

Earlier, the central government had told the high court that if marital rape was brought under law, "the entire family system will be under great stress". The Centre said the issue "deals exclusively with private affairs of husband-wife based on traditional social structure and hence can't be said to be unconstitutional".

The court has now posted the matter for August 28.