Lawyers in marital rape case see glimmer of hope in Supreme Court order on sex with child wife

The Delhi High Court is hearing a bunch of petitions, filed by RIT foundation, AIDWA, and a marital rape survivor, challenging the overall constitutional validity of Section 375.

Written by Shalini Nair | New Delhi | Updated: October 12, 2017 9:31 am
The verdict also goes on to cite excerpts from the Justice Verma report that state how the marital rape immunity has been withdrawn in most major jurisdictions including in England and Wales, whose common law has been adopted by India.

Although the Supreme Court judgment criminalising sex with a child wife says that it does not make any observation with regard to marital rape of an adult woman, lawyers arguing for criminalising marital rape say they are very encouraged by the apex court’s observations.

Especially the one where the court says that IPC Section 375, which allows rape of a wife over the age of 15 years, “creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child.”

The Delhi High Court is hearing a bunch of petitions, filed by RIT foundation, AIDWA, and a marital rape survivor, challenging the overall constitutional validity of Section 375.

Said senior advocate Colin Gonsalves, who is counsel for the marital rape survivor: “The Supreme Court has observed that the classification of girls into married and unmarried girls is an artificial distinction where sex with an unmarried girl is rape but the moment the man marries a girl, it is not rape. The same argument is being used in our petition in Delhi HC, the judgment will directly benefit it,” said Gonsalves. Sex with wife below 18 years is rape, rules SC; underlines girl’s right to choose

Justice Lokur said in the order, “While we are not concerned with the general question of marital rape of an adult woman but only with marital rape of a girl child between 15 and 18 years of age in the context of Exception 2 to Section 375 of the IPC, it is worth noting the view expressed by the Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired).”

The verdict also goes on to cite excerpts from the Justice Verma report that state how the marital rape immunity has been withdrawn in most major jurisdictions including in England and Wales, whose common law has been adopted by India.

The SC order also states that a combined reading of the judgment of the European Commission of Human Rights and the US Supreme Court’s observation makes it “quite clear that a rapist remains a rapist and marriage with the victim does not convert him into a non-rapist.” It goes on to say, “A rape that actually occurs cannot legislatively be simply wished away or legislatively denied as non-existent.”

Raghav Awasthi, advocate for RIT Foundation, said: “The fact that the SC said that there should be no distinction between a married girl and unmarried girl when it comes to rape would have a great impact on our case and we will be citing it in our arguments.” The Supreme Court of Nepal had struck down their marital rape exception in a 2002 on the grounds that “the classification of the law that an act committed against an unmarried girl to become an offence and the same act committed against a married woman not to become an offence is not a reasonable classification”.

Awasthi added, “The SC had clearly said that it is not concerned with the question of marital rape. However, its observations made on Wednesday, though not binding, will have a serious persuasive value in the Delhi high court case on marital rape.”

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