Absence of marital rape law doesn’t compel woman to have sexual relations, Delhi government tells HC
The Delhi government said that the option of divorce, as also other criminal provisions, remain open to the women.
The non-criminalisation of marital rape does not compel a woman to have sexual intercourse with her husband, the Delhi government on Tuesday told the Delhi High Court, Live Law reported.
The court was hearing a group of petitions challenging the legal provision that exempts sexual intercourse by a man with his wife from the purview of rape. An exception to Section 375 of the Indian Penal Code, which defines rape, states that sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.
On Tuesday, Nandita Rao, representing the Delhi government, said that the option of divorce, as also other criminal provisions, remain open to the women.
“There is no dispute that a woman has right to bodily integrity, she has a right to say no,” Rao said. “Just because this is not a criminal offence under Sections 375, does that create a compulsion on a woman to have sex with her husband? The answer is no.”
The lawyer said that women in such cases register cases under Sections 377 (unnatural sexual intercourse), 498A (cruelty by husband or relatives of husband) and 326 (causing grievous hurt by using dangerous weapons) of the Indian Penal Code.
However, Justice Rajiv Shakdher of the Delhi High Court orally observed that the nature of the relationship cannot place it on a different pedestal, The Indian Express reported. “Woman remains a woman...You can show us sections but jurisdiction after jurisdiction has held that merely because you are married, it is not good enough to say it is not an offence,” he said.
The court questioned why a married woman cannot call her husband out for rape. “Why is it so different for a non-married woman?” the court asked. “It affects non-married women’s dignity but doesn’t affect the married woman’s dignity?”
Raghav Awasthi, appearing for one of the petitioners, told that the non-criminalisation of marital rape violates Article 21 of the Constitution, which deals with protection of life and personal liberty. He said that marital rape is a punishable offence in many countries, including in Pakistan.
In the past, High Courts have made oral observations in favour of criminalising marital rape.
On August 6, the Kerala High Court held that marital rape was a valid reason to seek divorce.
In November 2017, the Gujarat High Court had said that marital rape is a “disgraceful offence” and not criminalising it has made “a large population of women” suffer.
