To criminalise marital rape or not, Delhi High Court in a fix

Satya Prakash

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New Delhi, January 30

To criminalise or not — the Delhi High Court appears to be in a fix over the contentious marital rape.

While hearing petitions filed by the RIT Foundation and three others seeking to criminalise marital rape, a Bench led by Justice Rajiv Shakdher on Friday said the court could not fold its hands and sit when people complained about a particular law.

The petitioners have challenged the validity of an exception 2 to Section 375 of the IPC on the ground that it discriminated against women raped by their husbands.

Section 375 of the Indian Penal Code defines rape as sexual intercourse without consent and against the will of a woman. But exception to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent.

But in October 2017, the SC had ruled that sex with one’s minor wife would amount to rape. It watered down the exception to Section 375 which said sexual intercourse by a man with his wife not under the age of 15 would not amount to rape.

Even as India dithers, more than 50 countries, including the US, the UK, Canada, France, Mauritius, Sri Lanka and Bhutan have already criminalised it.

The Law Commission had, in 2000, opposed criminalising marital rape on the ground “that may amount to excessive interference with the marital relationship”. But Justice JS Verma Committee (2013) said, “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”

After considering both reports, a parliamentary standing committee had said if marital rape was made a crime, the family system would be under stress and it could lead to practical difficulties.

Sec 375 says…

Section 375 of the IPC defines rape as sexual intercourse without consent and against the will of a woman. But exception to Section 375 says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without her consent.