The Aam Aadmi Party (AAP) government on Thursday told the Delhi High Court that marital rape, or forced sexual abuse by a man to his wife, is already an offence under the law and a ground for divorce.
The government’s Additional Standing Counsel, Nandita Rao, said that creation of marital rape as an offence by court would be violative of Article 20 of the Constitution, as it was the prerogative of the legislative.
Seeking criminalisation
In India, marital rape is not defined in any statute or law. Women’s rights activist have moved the HC seeking to make it a criminal offence.
Responding to a bunch of petitions seeking criminalisation of marital rape, the AAP government said that marital rape is an offence under Section 498A of Indian Penal Code, which deals with husband subjecting wife to cruelty.
Last year, the Centre had told the HC that criminalising marital rape “may destabilise the institution of marriage” and would become an easy tool for harassing husbands.
Ms. Rao said that a woman is entitled to refuse sexual relations with her husband as the right to bodily integrity and privacy is an intrinsic part of Article 21 of the Constitution.
‘Not a violation’
Non-criminalisation of marital rape is “not a violation” of Article 21 of Constitution as a wife is not compelled to live with a sexual abusive husband under personal law, Ms. Rao submitted.
She further submitted that all personal law considers marital rape as cruelty which is a grounds for divorce.
Petitioners NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim have challenged as unconstitutional an exception to Section 375 IPC, that defines rape.
The exception says sexual intercourse by a man with his wife aged 15 years or above is not rape even if it is without her consent. In October last year, the Supreme Court increased it to 18 years.
Ms. Rao submitted that if the HC was to hold the exception in Section 375 as violative of the Constitution, it will have to strike down the entire Section as “courts cannot create new offences”.
As the hearing remain inconclusive, a Bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar has put the case for further hearing next week.
