Misuse of a penal provision cannot be an argument for not criminalising an act, the Delhi High Court said today while hearing several PILs calling for “criminalisation” of marital rape.
The observation by a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar assumes significance as one of the reasons given by the Centre for not making marital rape a criminal offence was that it could be “misused”. Advocate Karuna Nandy, appearing for NGOS– RIT Foundation and the All India Democratic Women’s Association–told the court that there might be false complaints lodged by women, but such cases were rare.
She said the possibility of false cases being lodged and that it could destabilise the institution of marriage as well as become a tool to harass husbands cannot be a defence for not declaring forcible sexual intercourse between a married couple as an offence.
In apparent agreement with the petitioner NGOs, the bench said, “Misuse cannot really be an argument on whether an act should be criminalised or not”. While concluding their arguments, the civil society organisations said around 20 million married women in India were victims of marital rape every year. They also argued that since the neighbouring nations of Pakistan and Bhutan have criminalised marital rape and the Sri Lankan Cabinet has forwarded a proposal for doing so, India should follow suit.
The court had earlier remarked that the issue had “huge ramifications” and was of “tremendous importance”. The Supreme Court, in a historic verdict in October last, held that sexual intercourse with a girl below 18 years of age, even by the husband, would amount to rape. It, thus, read down a provision in the Indian Penal Code of 1860, exempting males from being tried for rape if the wives were between the age of 15 and 18 years.
The top court’s verdict will have a ramification in the petition pending before the high court. In the original petition before the high court, the NGOs had highlighted that the provision under the IPC did not consider non-consensual sexual intercourse with a wife, above 15 years of age, as rape. The high court is also hearing two intervention applications, one in support of pleas to make marital rape an offence and the other opposing it.
The Centre had advocated retaining the exception clause in section 375 (rape), saying child marriages were taking place in India and that the decision to retain a girl’s minimum age as 15 years to marry was taken under the amended rape law to protect a couple against the criminalisation of their sexual activity.
The NGOs’ counsel had said that they have challenged the constitutionality of IPC section 375 on the ground that it discriminated against married women being sexually assaulted by their husbands.