‘Disappointing’: Activists on Delhi HC verdict on marital rape criminalisation

PTI, May 11, 2022, 5:26 PM IST

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Terming the Delhi High Court’s split verdict on the issue of criminalisation of marital rape ”disappointing”, some women activists here expressed hope that the Supreme Court will exercise ”much more wisdom” in the matter, saying the current provisions are discriminatory against one category of rape victims. Noting that the high court has ”simply passed the buck” to the Supreme Court in the matter, All India Progressive Women’s Association member Kavita Krishnan said:

”The verdict by High Court is very disappointing and upsetting.The legal issue is very clear and it is discriminatory against one category of rape victims–wives. I hope that SC will show the courage and clarity needed for removing this shameful law.”

The Delhi High Court delivered a split verdict on the issue of criminalisation of marital rape with one of the judges favouring striking down the provision, the other holding it was not unconstitutional. The division bench granted leave to the parties to file an appeal before the Supreme Court.

Vani Subramanian, a member of the women’s group Saheli Trust, questioned that if domestic violence is a crime, then how is marital rape not a crime. She also pointed out that just because a woman got married, does not mean that means she has given consent once in for all. ”It is a very sad day. If this (marital rape) has happened, we need to acknowledge it, we cannot only consider the cases where it is very brutal. Women’s consent is central to this and the idea of equality, of bodily integrity. There needs to be some clarity on violence, that violence is violence where ever it happened. This is also a part of domestic violence. So domestic violence is a crime so how come rape is not a crime. I hope the Supreme Court will exercise much more wisdom,” Subramanian said. Meanwhile, anti-rape activist Yogita Bhayana is content that at least a discussion around marital rape has begun. She believes as the matter has been referred to a bench of the Supreme Court, there will be a robust discussion on the matter.

”I am happy that it has been referred to SC bench because now the order will be unbiased. The discourse around the matter has started. One year back, people were not even talking. Now they have started discussing,” she said.

The petitioners had challenged the constitutionality of the marital rape exception under Section 375 IPC (rape) on the ground that it discriminated against married women who are sexually assaulted by their husbands.

Under the exception given in Section 375 of the IPC, sexual intercourse or sexual acts by a man with his wife, the wife not being minor, is not rape.

While Justice Rajiv Shakdher, who headed the division bench, favoured striking down the marital rape exception, Justice C Hari Shankar said the exception under the IPC is not unconstitutional and was based on an intelligible differentia.

In February, the Centre had urged the court to grant more time to enable it to state its stand on the issue after a consultative process.

The request was however turned down by the bench on the ground that it was not possible to defer an ongoing matter endlessly.

In its 2017 affidavit, the Centre had opposed the pleas, saying that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands.