The Delhi High Court on Thursday told the Centre that it will continue hearing the petitions challenging the legal exception that protects men who have forced non-consensual intercourse with their wives from criminal prosecution, and not wait for the government’s ongoing process of initiating reform in the criminal laws.
The division bench of Justice Rajiv Shakdher and Justice C Hari Shankar, while addressing Monika Arora, counsel representing the Centre said,
The point is if you are going to say that we should wait till all states and all commissions come and you revamp the entire IPC, CrPC and Evidence Act before we decide this, that is not possible, that will take you 10 years to do that exercise. You are doing something particularly qua this provision [Section 375 IPC], then you tell us.
The Centre, which is likely to address the arguments in the case next week, earlier submitted before the bench that it was considering a “constructive approach” to the matter and has invited suggestions from various authorities including chief ministers of states and chief justices of high court regarding amendment of criminal laws. The Ministry of Home Affairs in an additional affidavit before the court said,
The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus Government is already seized of the matter.
However, the court said that it was a general exercise. The bench observed,
If viz a viz [IPC] 375 you people have some suggestion, then we will consider that. Generally this exercise is going to take a very long time.
Delhi Government’s Stance
The Delhi government has submitted before the bench that a court does not have the power to create a new offence even as it argued that marital rape is treated as a “crime of cruelty” in India which can be prosecutable under charges of domestic violence, assault or cruelty under the IPC.
Centre’s Stance
The affidavit, filed on Thursday, stated that the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, cannot be struck down at the instance of the petitioner alone. “Principles of natural justice require larger hearing of all stakeholders,” emphasised the government, reported Hindustan Times.
The government’s petition indicates no change in its position — and comes amid a rising chorus seeking the criminalisation of marital rape.
Underlining that amendment of criminal law is “a continuous process”, it added that suggestions have been invited from chief ministers of all the state governments and from Union territories, the Chief Justice of India, chief justices of all high courts, judicial academies, national law universities, Bar Council of India, Bar Council of all high courts and members of both Houses of Parliament. The affidavit, filed through the Union ministry of home affairs, however, does not mention the date when views were solicited. The affidavit reported by HT stated,
The government has already undertaken a comprehensive exercise to make amendments in the criminal laws and thus, the government is already seized of the matter. The petitioners are also at liberty to give their submissions/suggestions to the Ministry.
It relied upon parliamentary standing committee reports in 2008 and 2010 to argue that the need is to overhaul the criminal laws instead of making any piecemeal changes in any specific legislation.
The government further cited the 172nd report of the Law Commission of India on “Review of Rape Laws” in March 2000 that said it would not recommend deletion of the exception clause in Section 375 “since that may amount to excessive interference with the marital relationship”.
Further, a 2017 Supreme Court judgment, said the government, read down an exception to Section 375 only to the extent of criminalising rape with a minor wife but clarified at the same time that it has not expressed any view on the issue of marital rape. The 2017 judgment, as quoted by the affidavit, stated,
We make it clear that we have refrained from making any observation with regard to the marital rape of a woman, who is 18 years of age and above, since that issue is not before us at all. Therefore, we should not be understood to advert to that issue even collaterally.
The fresh affidavit has been filed by the Union government in addition to the one filed in August 2017 which said that it has to be ensured that marital rape does not become a phenomenon that destabilises the institution of marriage and “an easy tool for harassing the husbands”. The petitions have been pending before the court since 2015.
The 2017 affidavit added,
What may appear to be marital rape to an individual wife, it may not appear so to others…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 a marital rape or not will singularly rest with the wife.
The question is what evidences the Courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.
The bench is currently hearing final arguments in the bunch of PILs filed by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals, who have sought removal of the exception to Section 375, saying that it discriminated against married women who were sexually assaulted by their husbands.
The bench has also appointed Rebecca John as amicus curae after most of the arguments have been nearly completed.
Men’s Day Out browsed through the website put up in support of this PIL. The website shared data as below:
- 83% of married women (nearly one in three) have been subjugated to physical, sexual and emotional violence at the hands of their spouse
- 31% of married women between the ages of 15 and 49 who have ever suffered sexual abuse cite their current husband as the perpetrator
However, we couldn’t come across any source or reference validating these figures projected. The data points do not state whether these figures pertain to India or any other country or are an random estimate.
The website also makes reference to how “Out of 195 countries in the world, 140 nations have already criminalised marital rape. The list includes countries like USA, UK, Germany, France, Australia and Russia.”
Let us understand how Marital Rape Laws are GENDER NEUTRAL in each of these countries referred in the PIL Vs how it will only act in favour of wives if it comes into force in India.
MDO is at no point defending perpetrators of sexual violence within or outside marriage. But we do question if the premise is ‘Men don’t face sexual harassment without consent in a marriage and wives are the only victims. Is the premise that sex is always a pleasure for the Men, and pain for the Women?’
It is important for all social media warriors to understand basic facts, existing laws which are completely lopsided in favour of wives (Section 498A IPC, Domestic Violence Act, Section 125 CrPC) before demanding another Gender Biased Law fuelling out of emotions.
USA
Marital Rape in United States law, also known as SPOUSAL rape, is non-consensual sex in which the perpetrator is the victim’s spouse. It is a form of PARTNER rape, of domestic violence, and of sexual abuse. Today, marital rape is illegal in all 50 US states, though the details of the offence vary by state.
United Kingdom
Marital rape, also known as SPOUSAL rape, is a sexual assault under UK law (as outlined in the Sexual Offences Act 2003).
The offence occurs when a person commits a sexual act without the consent of their spouse (or ex-spouse) or does so against their will. This sexual assault can also be considered a form of domestic violence.
For a person to be found guilty of marital rape, prosecutors must prove:
- Penetration of the anus, mouth or vagina occurred.
- The act of penetration was intentional.
- The plaintiff did not consent to the act of penetration.
- The defendant did not believe (within reason) that the complainant had consented to the relevant act.
The act of marital rape does not only apply to people who are married, but it can also be committed by those who cohabit as spouses but are not legally married. Women cannot be charged with committing rape because the offence requires penile penetration. That said, if a woman commits a sexual act without the consent of her spouse, or ex-spouse, she is committing a sexual offence and can be charged with:
- Sexual coercion
- Causing a person to engage in sexual activity without consent
- Sexual assault
Germany
Germany outlawed SPOUSAL rape in 1997, which is later than other developed countries. Female ministers and women’s rights activists lobbied for this law for over 25 years. Before 1997, the definition of rape was:
Whoever compels a woman to have extramarital intercourse with him, or with a third person, by force or the threat of present danger to life or limb, shall be punished by not less than two years’ imprisonment.
In 1997 there were changes to the rape law, broadening the definition, making it GENDER NEUTRAL and removing the marital exemption. Before, marital rape could only be prosecuted as “Causing bodily harm” (Section 223 of the German Criminal Code), “Insult” (Section 185 of the German Criminal Code) and “Using threats or force to cause a person to do, suffer or omit an act” (Nötigung, Section 240 of the German Criminal Code) which carried lower sentences and were rarely prosecuted.
France
The law criminalises rape, including SPOUSAL rape, and domestic violence, and the government generally enforced the law effectively. The Court of Cassation authorized prosecution of spouses for rape or sexual assault in 1990. In 1994, Law 94-89 criminalised marital rape; a second law, passed 4 April 2006, makes rape by a partner an aggravating circumstance in prosecuting rape. (Article 222-24(11) of the Criminal Code
Australia
Criminalisation in Australia began with the state of New South Wales in 1981, followed by all other states from 1985 to 1992. The government enforced the law effectively. The laws of individual states and territories provide the penalties for rape. The first Australian state to deal with marital rape was South Australia, under the progressive initiatives of Premier Don Dunstan, which in 1976 partially removed the exemption.
Section 73 of the Criminal Law Consolidation Act Amendment Act 1976 (SA) read:
No PERSON shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person.
Russia
Rape is illegal, and the law provides the same punishment for a relative, including the SPOUSE, who commits rape as for a non relative The Soviet Union, which Russia was the dominant republic, removed “marital exemption” from its rape laws in 1922.
PIL In Delhi High Court
The PIL in Delhi High Court is NOT to demand Gender Neutral Marital Rape Law, but to strike down the exception in Section 375 of the IPC, which will only arm women and could be prone to tremendous misuse.
Section 375 from the Indian Penal Code defines rape as sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped, or is of unsound mental health and in any case if she is under 15 years of age.
But exception 2 from the same section states that sexual intercourse by a man with his own wife, the wife not being under 18-years of age, is not rape.
India does not even have a Gender Neutral Domestic Violence Law or Criminalisation of Cruelty Against Husbands By Wife & Her Parents (498-A). Unless the existing laws are made Gender Neutral, motivated women will keep using these laws as tool to harass, threaten, suppress and make husbands agree to all legitimate or illegitimate demands.
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