The Delhi High Court on Wednesday appointed Senior Advocate Rebecca John to assist it in matters seeking criminalization of marital rape in the country.
The Division Bench of Justice Rajiv Shakdher and Justice C. Hari Shankar is hearing a batch of petitions challenging the Exception to Section 375 of the Indian Penal Code, 1860, to the extent that it excludes sexual intercourse by a man with his own wife, the wife being above fifteen years of age, from the offence of rape.
Senior Advocate Rajshekhar Rao, another amicus curiae in these matters, who supports striking down of the Exception to Section 375, submitted that the act of rape dehumanizes the very existence of a woman.
Referring to Sections 375 and 376, he said thus:
“Everyday that this Act remains on the books, there is a section of population which is denied the ability to call a rape a rape. No amount of telling that woman that she can prosecute the husband under ten other provisions of law can undo the indignity that she faces because she is violated by the person who is supposed to be her companion, her husband, her partner and a person who is in a fiduciary capacity.”
“The silver lining is a woman is better off, as a matter of law, when she is assaulted by a stranger. But when her loved one assaults her, the law says she is not entitled to call that act rape,”
-he told the Bench.
He then added that a reading of Section 376 somewhere gives a message that a person who is in a fiduciary relationship and is in a position of trust and violates it, deserves a harsher punishment.
Justice Hari Shankar raised a question as to what extent the trust and fiduciary relationship involved between husband and wife different from trust involved in other relationships like teacher and student. He underscored that in order to strike down the law, there has to be a qualitative reasoning that no punishment prescribed under other statutes is enough for the offence.
Advocate Raj Kapoor, appearing for one of the intervenors opposing the batch of petitions, submitted that if the exception is struck down, the husband would be in a worse off position than the case covered under Section 376B. He also added that the concept of western countries should not been used for striking down a statutory provision followed in the country.
Another intervenor Men Welfare Trust, an organisation working for the welfare of men, represented by its member Ritwik Bisaria, argued that ample protection is available to women under various other laws.
The Bench will continue hearing these matters today at 3:00 pm.
The petitioners in these matters, represented by Advocate Karuna Nundy, include NGOs RIT Foundation and All India Democratic Women’s Association who have challenged an exception to Section 375 of the Indian Penal Code.
RIT Foundation and AIDWA have pleaded that the exception for marital rape under Section 375 of the Indian Penal Code violates the Constitution-given rights to women of dignity, personal and sexual autonomy and self-expression.