Explained | Marital rape in India: The history of the legal exception
The Hindu
The court took seven years to hear petitions seeking to criminalise marital rape before coming up with a split verdict.
The story so far: The Delhi High Court on Wednesday delivered a split verdict on decriminalising marital rape in the country. While Justice Rajiv Shakdher struck down Exception 2 of the Indian Penal Code’s Section 375 that decriminalised rape within marriage, Justice C. Hari Shankar upheld its validity. Exception 2 of Section 375 states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In October 2017, the Supreme Court of India increased the age to 18 years.
The court took seven years to hear petitions seeking to criminalise marital rape.
Section 375 of the IPC defines the acts that constitute rape by a man. The provision, however, lays down two exceptions as well. Apart from decriminalising marital rape, it mentions that medical procedures or interventions shall not constitute rape.
In India, there are no legal provisions that define “marital rape”. The petitions challenging the exception to Section 375 of the IPC were filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim.
An NGO named Men Welfare Trust has opposed the petitions and argued that sexual intercourse between a husband and wife cannot be treated at par with that in non-marital relationships as the issue of consent cannot be divorced from the context of a marriage.
The first petitions to criminalise marital rape were filed in Delhi High Court in 2015. In 2017, the central government filed an affidavit in the case, saying that criminalising marital rape “may destabilise the institution of marriage” and become a potential tool for harassing husbands.
Hearings in the matter began in January 2022. The Centre filed an additional affidavit in the case, saying that it can assist the High Court only after consulting all stakeholders, including the state governments. “Absence of any such consultative process by the executive/legislature may result in some injustice to one section or the other”, the Centre had said.
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