Criminalisation of marital rape “could open floodgates of false cases being made with ulterior motives”, the Centre has told the Delhi High Court.

The government made the statement in a written submission to the High Court, which is hearing a batch of petitions to remove Exception 2 in the rape law under Section 375 of the Indian Penal Code. The exception states that forcible sexual intercourse by a man with his wife is not rape, unless the wife is below 15 years of age.

In its submission made on January 12, which Scroll.in has accessed, the Centre said if the exception is removed, cases of marital rape would be dealt with in accordance to Section 376, which deals with punishment for rape.

The Centre said that under Section 376, the statement of a woman is enough to convict the accused person of rape. It said that except the medical evidence, there is no need to corroborate her statement unless the court finds “compelling reasons” to examine the testimony.

The government said that medical evidence, such as injuries on body parts, can support a woman’s statement. But, these would be rendered useless in cases of marital rape allegations, it claimed.

“It will be difficult to determine as to when consent was withdrawn by the married woman,” the government said. “Most of the circumstantial and corroborative evidence will become futile in case of marital rape.”

The Centre pointed out that physical and sexual assault is already covered under the Protection of Women from Domestic Violence Act, 2005.

The government said that registration of false cases have been “well documented” under Section 498A of the Indian Penal Code and also recognised by the Supreme Court. The section deals with cruelty to women from her husband or his relatives.

In its submission, the Centre said that the Supreme Court had framed guidelines for protection of husbands and their families from such false complaints in the Rajesh Sharma versus the state of Uttar Pradesh case.

“The Hon’ble Supreme Court of India in Sushil Kumar Sharma vs Union of India AIR 2005 SC 3100 has equated the misuse of Section 498A with legal terrorism,” the government stated.

It added: “Therefore, the apprehension of respondents [the Union government] of gross misuse of the offence of marital rape by the wife cannot be ruled out. Adequate procedural safeguards will also have to be ensured to be put in place which can be done by the legislature in case it seeks to make marital rape an offence.”

Don’t follow western countries: Centre

The government also told the Delhi High Court that various other countries, mostly Western ones, have criminalised marital rape but it does not mean India should also “follow them blindly”.

“This country has its own unique problems due to factors like illiteracy, 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 added.

Citing the diversity in cultures in the different states of India, the government also asked the High Court to implead them in the matter to know their opinion and avoid complications at a later stage.

The Centre also said that the 172nd Law Commission had examined the matter and did not recommend criminalisation of marital rape.

Also read:

  1. Explainer: Why is marital rape not a crime in India – and can the courts make it one?
  2. Marital rape hearing puts spotlight on other laws that reinforce patriarchal nature of marriage

Arguments in case hearings

On Tuesday, the Centre had told the High Court that the criminalisation of marital rape involves “family issues” and cannot be seen from a “microscopic angle”. Solicitor General Tushar Mehta, representing the Centre, had requested the court to grant “reasonable time” to submit the government’s stand on the matter after consulting the stakeholders.

At an earlier hearing on January 14, the High Court had observed that a sex worker has the right to say no to a client, and questioned how a married woman can be denied that right with respect to her husband.

At another hearing on January 12, the Delhi government, which is also a party to the petitions, had submitted to the court that the non-criminalisation of marital rape does not compel a woman to have sexual intercourse with her husband.

The Delhi government had said that a woman can register cases under Sections 377 (unnatural sexual intercourse), 498A and 326 (causing grievous hurt by using dangerous weapons) of the Indian Penal Code.

However, Senior Advocate Rebecca John had said that provisions such as 498A and the Domestic Violence Act are not enough to deal with a case of a wife alleging rape by her husband.

John is one of the amici curiae – advisor to the court – who has been appointed to assist in the hearings.

John had also said that there was no commonality between other legal provisions and Section 375 and added that each offence needed to be prosecuted separately.