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, the Central government submitted before the Delhi High Court on Tuesday.
The Centre, in an affidavit filed in response to pleas seeking criminalising marital rape, said 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.
Inclusion of State
The reply, filed before a Bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar, also sought to include State governments in the matter to know their opinion to avoid any complication at a later stage.
“It has to be ensured adequately that marital rape does not become a phenomenon which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands,” the affidavit, filed through Central government standing counsel Monika Arora, said.
The government was responding to various 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.
During the day’s hearing, senior advocate Colin Gonsalves, appearing for one of the petitioners, argued that marriage cannot be viewed as licence for a husband to rape his wife with impunity and a married woman has the same right of full control over her body as an unmarried woman.
He also referred to judgments of foreign countries, mostly western ones, where marital rape is criminalised. To this, the Centre said it does not necessarily mean India should 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,” it said.
The Centre said in the affidavit that marital rape has not been defined in a statute or law, while the offence of rape is defined under Section 375 of the IPC. Hence, defining marital rape would call for a broad-based consensus of the society.
Social awareness
“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,” it said.
It said that 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, it added.
“If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is marital rape or not will singularly rest with the wife.” The hearing in the matter would continue on Wednesday.
