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Intercourse between husband, wife can’t be labelled rape, HC told

One of the intervenors made the argument before Delhi High Court on Tuesday while opposing the petitions seeking criminalisation of marital rape.

New Delhi |
January 25, 2022 8:10:54 pm
Delhi HCOne of the intervenors made the argument before Delhi High Court on Tuesday (file photo)

A wife cannot compel Parliament to prescribe a “particular punishment against husband” to “satisfy her ego”, one of the intervenors argued before Delhi High Court on Tuesday while opposing the petitions seeking criminalisation of marital rape.

The submission was made before the division bench of Justices Rajiv Shakdher and C Hari Shankar during hearing of petitions challenging Exception 2 in IPC Section 375, which protects men who have forced non-consensual intercourse with their wives from criminal prosecution under Section 376 IPC.

Advocate R K Kapoor, representing an NGO, Hridey, submitted that Exception 2 has been retained to protect the institution of marriage, which is “important not only for the couple but for the family, which includes children and parents also”.

“Parliament is not justifying the act [marital rape] for which Exception 2 has been provided but only that it may not be punished under section 376 IPC,” Kapoor argued. “If (a) husband has used force or intimidation in the case of so-called marital rape, there are other sufficient provisions in IPC and other statutes.”

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He said sexual intercourse between a husband and a wife in “marital relationship cannot be a labelled as rape, and at the worst it can be called a sexual abuse only”.

Kapoor argued that Parliament has covered such an act of sexual abuse under ‘cruelty’ but has taken it out of the purview of rape as defined under IPC Section 375, and exempted husband from the severity of Section 376. “Parliament does not say that such an act is not sexual abuse but has taken it on a different plane to save the institution of marriage,” Kapoor said.

He said there are sufficient provisions in favour of the wife.

Submitting that there are limitations on powers of the court in the matter of judicial review, Kapoor contended that the power of the High Court under Article 226 cannot be equated with the power of Supreme Court.

The court will continue to hear arguments on Thursday.

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