New Delhi: The union government has told the Delhi high court that just because other countries, mostly western, have criminalised marital rape does not necessarily mean India should follow them blindly.
Opposing a bunch of pleas seeking to criminalise marital rape in the country, the Centre in its written submissions has told the high court that “India has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc. and these should be considered carefully before criminalising marital rape”.
Reiterating its earlier stand of 2017, the union government has said that there is a vast diversity in the cultures of Indian states and it is necessary to implead the state governments in the matter to know their opinion to avoid any complications at a later stage.
It said that even in its 172nd report titled Review of Rape Laws, the Law Commission has examined the matter and did not recommend the criminalisation of marital rape.
The government also said that the high court does not have the power to legislate in the issue, adding that the courts cannot usurp the power of the legislature.
“Removal of exception 2 of Section 375 IPC which consciously would be akin to legislating a separate offence which can be done only by the legislature as per the doctrine separation of power prescribed in the Constitution of India,” the written submissions read.
Repeating its 2017 apprehension of gross misuse of the offence of marital rape, the Centre said that the same cannot be “ruled out”. It said that adequate procedural safeguards will also have to be ensured to be put in place.
“Furthermore, deletion of exception of Section 375 would make marital rape cognizable, non- bailable and non-compoundable offence. This would stop the chances of settlement between husband and wife which is possible under section 498A Indian Penal Code (domestic violence),” the union government said.
Referring to the Supreme Court, the Centre said that the apex court has spoken about the misuse of 498A IPC and removing of the exception in the rape law can also open floodgates of false cases being made with ulterior motives.
“Reasonable restrictions shall be imposed on the Fundamental Rights guaranteed under the Constitution,” it said.
It said that the aspect of marital rape is sufficiently covered under “sexual abuse” under the definition of domestic violence. The offence as well as adequate remedies has been provided under the Act. Furthermore, any act of unnatural sex between man and his wife are also squarely covered under Section 377 IPC.
The written submissions were filed on January 12 in response to a bunch of PILs filed in 2015 by NGO RIT Foundation, All India Democratic Women’s Association and two individuals who have sought to strike down the exception in the Indian rape laws on the grounds that it discriminated against married women who were sexually assaulted by their husbands.
Exception of section 375 IPC decriminalises marital rape and mandates that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
Opposing the pleas further, Centre has said that in case exception 2 of Section 375 is removed, all such cases will be dealt with as per the jurisprudence applicable to the present offences committed under Section 375.
“The testimony of the prosecutrix is sufficient to convict the accused under Section 376 IPC. There is no reason to insist on corroboration except from the medical evidence. The testimony of a woman who is victim of sexual violence must ordinarily be corroborated in material particulars except the rarest rare. There is rarely direct evidence of a person other than the prosecutrix is available,” the submissions read.
It said that it will be difficult to determine as to when the consent was withdrawn by the married woman.
“Most of the circumstantial and corroborative evidence will become futile in case of marital rape,” it added.
In its August 2017 affidavit, the Centre said that the Supreme Court and various high courts have already observed the rising misuse of Section 498A (harassment caused to a married woman by her husband and in-laws) of Indian Penal Code (IPC).
It further said that marital rape has not been defined in a statue or law and while the offence of rape is defined under section 375 IPC, defining marital rape will call for a broad-based consensus of the society.
However, in mid-January, the Union government informed the high court that marital rape cannot be made into a criminal offence until the Centre’s consultation with all stakeholders is complete, paving the way for comprehensive amendments in criminal law instead of “piecemeal” changes.
Submitting a fresh affidavit in response to a clutch of petitions to criminalise marital rape, the Centre maintained that it is examining the issue of broad changes in criminal law of the country and that the petitioner could also give their suggestions to the competent authorities.
Underlining that amendment of criminal law is “a continuous process”, it added that suggestions have been invited from chief ministers of all the state governments and from Union territories, the Chief Justice of India, chief justices of all high courts, judicial academies, national law universities, Bar Council of India, Bar Council of all high courts and members of both Houses of Parliament.
The affidavit, filed through the Union ministry of home affairs, however, does not mention the date when views were solicited.
Later, on January 17, the Solicitor General, Tushar Mehta said that consultations are ongoing and the State would require time to respond on the issue. The time to respond was extended on January 24 (Monday), after the SG said that a half-hearted reply would affect the citizens of the country, adding that the dignity of a woman is at stake.
He said criminalisation of marital rape involves “family issues” and cannot be looked at from a microscopic angle. He added that the matter can wait as nothing imminent is going to happen.
As an independent media platform, we do not take advertisements from governments and corporate houses. It is you, our readers, who have supported us on our journey to do honest and unbiased journalism. Please contribute, so that we can continue to do the same in future.
