The legal position has been around for so long: Supreme Court advice to the government on marital rape | Latest India News

The legal position that marital rape is not a crime against the husband has been around for a very long time, the Supreme Court observed on Friday as it sought a response from the Union government on a series of petitions against the split verdict of the Delhi High Court on the matter. , but put the next hearing after five months.

Currently, non-consensual sex between a man and his wife is not a criminal offence. Exception 2 of section 375 of the Indian Penal Code (IPC) decriminalizes marital rape and provides that sexual intercourse of a man with his own wife, the wife not being less than 18 years of age, does not constitute rape.

The bench of Judges Ajay Rastogi and BV Nagarathna found no urgency in hearing appeals against the High Court’s split verdict on marital rape in May – HC judge slamming clause protecting husbands from prosecution for sex not consensual with their wives as “morally repugnant”, while the other saying he broke no law and could continue to exist.

” This post [on marital rape] has been around for so long. What can be so urgent? the bench asked attorney Karuna Nundy, who led the batch of petitions calling for the criminalization of marital rape on the grounds that the relevant legal provision violates women’s rights to privacy, dignity and sexual autonomy .

Nundy, for his part, asked the bench for an early hearing date, pointing out that the case in the Delhi High Court has been pending since 2017 after the central government took a strong stance against any changes to the dated clause. exception, but later said a national consultation is underway to revise the country’s criminal laws. “The High Court’s decision finally came in May, but the matter had been pending before the High Court since 2017. We are asking if this could be heard a little earlier,” she said.

But the bench said it would not schedule the next hearing until February. “Come back later. We will look into it,” he said. The court then proceeded to issue a notice and allowed the case, instructing all parties to complete oral argument in the meantime.

While lead attorney Colin Gonsalves represented another petitioner seeking the waiver of the immunity clause under the ICC, lead attorney Gopal Sankaranarayan and attorney J Sai Deepak also appeared in the case and were allowed to plead. Deepak appeared for the organization “Men Welfare Trust”, which opposed the plea for the criminalization of marital rape.

On May 11, even as the two High Court judges delivered a split verdict on the criminalization of marital rape, they said the issue raised a substantive question of law and required an authoritative decision from the highest court.

Before the high court, Judge Rajiv Shakdher had ruled that the exception in rape laws was contrary to equality and dignity, and added that such a clause recognized the abominable common law doctrine according to which “a married woman is nothing but chattel which loses its sexual agency once she enters marriage”.

However, his fellow judge on the division bench, Judge C Hari Shankar, disagreed, and said the exception does not violate any law and is not unconstitutional. The legitimate expectation of sex was an “inexorable relationship incident” between a husband and wife, which set it apart from other relationships, he added.

The split judgment came on a slew of petitions filed in 2015 by a non-governmental organization, the RIT Foundation, the Democratic Women’s Association of India and two individuals. The petitioners argued that criminalizing marital rape is about respecting a woman’s right to say “no” and recognizing that marriage is no longer a universal license to ignore consent.

In 2017, the Union government opposed the pleas and said India could not blindly follow the West and criminalize marital rape as several factors had to be considered.

However, in mid-January this year, when the hearing resumed after a hiatus due to the Covid-19 pandemic, the Center told the High Court that marital rape cannot be criminalized as long as the Centre’s consultation with all stakeholders is not complete, paving the way for comprehensive criminal law changes rather than “piecemeal” changes.

Later, Solicitor General Tushar Mehta, for the Center, told the court he was taking a ‘constructive approach’ to the matter and asked for time to come to a conclusion, adding that a half-hearted response would directly affect citizens. from the country.

The government has also urged the High Court to stop hearing cases for the time being, stressing that any judicial decision, without letting the Center complete its consultation with states and other stakeholders, “cannot serve the purposes of the justice”.

After the Center failed to take a definitive position on the matter despite repeated nudging, on February 21, 2022, the High Court refused to give the Union Government any more time and called its position from “Trishanku” – in limbo. He decided to consider the position they took in 2017 where he opposed petitions.

In response to question by Communist Party of India MP Binoy Viswam on marital rape in Parliament on February 2, Union Women and Child Development Minister Smriti Irani said that the protection of women and children was a priority, but condemning every marriage as violent and every man. a rapist is not advised.

About 50 countries around the world have removed the provision of marital rape. India is one of 34 countries that have not yet criminalized marital rape. According to a UN Women report, most of these 34 countries were developing countries, including Pakistan, China, Bangladesh, Myanmar, Sri Lanka, Haiti, Laos, Mali, Senegal, Tajikistan and Botswana.


  • ABOUT THE AUTHOR

    Utkarsh Anand is legal editor at the Hindustan Times. He writes on law, justice and governance.
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