Above: Illustration by Anthony Lawrence
When the Delhi High Court on Tuesday (January 2) resumed hearing of petitions wanting the criminalization of marital rape, it was informed by the petitioner that 52 countries in the world have criminalized marital rape.
The bench comprising of Acting Chief Justice Gita Mittal and Justice C Hari Shankar was informed that countries Nepal, Uganda, South Africa, Australia and Canada have criminalized marital rape.
The bench wanted to know as what prompted these countries to criminalize marital rape.
To which the petitioner responded by saying: “The rule of law only cover the public domain. Domestic violence in home is beyond the scope of law. In a private domain there is urgent need of law that covers the aspect of protection of women. A law on sexual violence is emerging need of society. In many countries marital rape is still not criminalised. In UK the house of lord also made it clear after 250 years and described marital rape as an anachronistic and offensive legal fiction. In the world 52 countries explicitly criminalise the marital rape.”
The bench then asked the petitioner: “Marriage bond gives you immunity against anything. Once you bring exception it will change the meaning of whole act.”
Petitioner replied: “Consent is necessary before doing anything even in married life. If before marriage I had sex with woman that is punishable with rape but if I marry that woman and do the same thing then its immune .Very simple to understand. The Union of India doesn’t use the word consent; it’s of no use for them. The studies I am showing will reveal that levels of violence are lower in unmarried life in comparison to married life.”
The bench enquired about the false complaints. “The husbands will give the rationale that they were falsely implicated by the wives as happened in domestic violence cases,” the bench asked.
The petitioner submitted to the bench: “A study shows that in Uttar Pradesh 49 per cent agreed that yes they indulge in marital rape and about 26.8 per cent in Rajasthan agreed. So going by these statistics, half of the men indulge in marital rape.”
The petitioner then told the bench that they were challenging Section 375 Exception 2 which says “Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.
The petitioner further said that they are also challenging Section 376 (b) — sexual intercourse by man with wife during separation.
The bench said: “Why are you challenging this?”
The petitioner answered: “Because it is bailable and punishment is only seven years. Under Section 357(C) CrPC all hospitals, public or private, whether run by the Central Government, the State Government, local bodies or any other person, shall immediately, provide the first-aid or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376, 376A, 376B, 376C, 376D or section 376E of the Indian Penal Code, and shall immediately inform the police of such incident. None of these facilities being available to the marital rape victims and also not have the facility to use the protocol unless we criminalised it.”
The bench asked: “Are you therefore referring your case to violent sexual assault?”
To which the petitioner replied: “The very definition of rape, something non-consensual is an act of violence. Take Nirbhaya case for instance.”
The bench listed the matter for next hearing to January 3.
—India Legal Bureau