Judiciary can’t direct govt. to frame laws on marital rape: HC

Court rejects petition seeking guidelines to make rape a ground for divorce

NEW DELHI, 24/01/2018: A view of Delhi High Court, in New Delhi on January 24, 2018. Photo: Sushil Kumar Verma

The Delhi High Court on Tuesday declined a plea seeking direction to the Centre to frame guidelines for registration of FIR for marital rape and laws to make it a ground for divorce.

A Bench of Chief Justice D.N. Patel and Justice C. Hari Shankar said the court cannot direct the government to frame laws as it is the domain of the legislature and not the judiciary. It said the issue of marital rape has to be dealt by the legislature and not the judiciary.

The High Court was hearing a plea filed by advocate Anuja Kapur who also 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.

Earlier, the Supreme Court had refused to entertain a petition filed by Ms. Kapur on the issue, and asked her to approach the High Court for relief.

“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,” her plea had said.

Petitioner’s contention

She contended that there was a lot of confusion over the law under which an FIR or case related to marital rape can be registered.

“There should be a clear guideline for registration of the case of marital rape under framed guidelines and laws,” the plea said.

Ms. Kapur said since marital rape is not a crime, there is no FIR registered by a wife against her husband, rather, it is being compromised by the police “to maintain the sanctity of the marriage between the victim and her husband”.

Cites survey report

Her plea also cited a report of National Family Health Survey which said that nine out of every 100 men across India agreed that a husband is justified in beating his wife if she refuses to have sex with him.

“The survey also reported that 15 out of every 100 men in India do not agree to the fact that a wife is justified in refusing to have sex with her husband when she is tired or not in the mood,” the plea said. “Five out of every 100 women in India reported that their husband had physically forced them to have sexual intercourse with him even when they didn’t want it,” she added.