An NGO’s plea in the Delhi High Court seeking to make marital rape an offence was on Tuesday opposed by another NGO, run by a group of men, which said that married women have been given adequate protection under the law against sexual violence by their husbands. NGO Men Welfare Trust claimed that exception in Section 375 of the IPC, which says intercourse or a sexual act by a man with his wife is not rape, is “not unconstitutional” and setting it aside will create more injustice.
It was opposing the petitions filed by NGO RIT Foundation and the All India Democratic Women’s Association, which have challenged the constitutionality of Section 375 (which defines rape) of the IPC on the ground that it discriminated against married women being sexually assaulted by their husbands. A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar posed various questions to the trust’s representatives, who were made intervenors in the matter, and asked whether their stand was that a husband has a right to perpetrate sexual offence on his wife and could he force sex on his spouse?
To this, NGO Men Welfare Trust’s representatives Amit Lakhani and Ritwik Bisaria replied in the negative and said there were existing provisions, including domestic violence law, harassment to married woman, unnatural sex, which provide adequate protection to a wife against sexual violence committed by the husband. However, no such protection is given to husbands as laws in India are gender specific, unlike in most parts of the world, they argued.
When NGO Men Welfare Trust said that rape by a husband and a third person cannot be put on a same pedestal, the bench shot back, saying “a rape is a rape. Is it that if you are married, it is okay but if you are not, then it’s a rape? If an uncle or grandfather sexually assaults a woman or a girl, it is covered under the offence of rape.” The arguments remained inconclusive and will continue on April 16, the next date of hearing.
Earlier, Kolkata-based NGO Hridaya had also opposed the plea to make marital rape an offence, saying consent for physical relations is for all time when a person enters the institution of marriage. The high court had earlier agreed to examine the issue raised in PILs by advocate Karuna Nundy, who represented RIT Foundation and the All India Democratic Women’s Association, and a man and a woman, who have sought striking down the exception in the Indian penal law that does not consider sexual intercourse with a wife, not less than 15 years of age, as rape.
The petitions have also sought setting aside of the exception in the rape law that protects husbands, saying that it violates the right to equality, freedom and to live life with dignity provided under the Constitution. The Delhi government had said that quashing the protection husbands enjoy against prosecution for marital rape would lead to “creation of an offence”, which is a legislative job and courts cannot create or legislate an offence, which would be the inevitable outcome of striking down of the exception in the IPC.
The Centre has opposed the main petitions saying marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.