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Petitions Urging that Marital Rape be Made a Criminal Offence Heard in Court

On 17th July, Delhi High Court conducted a hearing to petitions questioning the exception to Section 375 of the IPC
 AIDWA Petition on Martial rapes

All India Democratic Women’s Association (AIDWA) had filed a petition to the Delhi High Court in July, 2017, challenging the constitutional validity of the Exception to Section 375 of the Indian Penal Code (IPC), 1860. AIDWA, founded in 1981, is the largest women’s organization in India, committed to achieving democracy, equality and women's emancipation.

The writ petition filed by them challenges the exception to Section 375 pointing out that “by depriving married women from availing the existing criminal remedy for rape through this legal fiction, the marital rape exception violates Articles 14, 15(1) and 21 of the Constitution.”

Article 14 of the Indian constitution states that all citizens of India are to be treated equally by the law, irrespective of their religion, race, cast, sex, or place of birth. Article 15(1) ensures that the State doesn’t discriminate against any citizen of the country based on the same grounds. And Article 21 says that no person should be deprived of their life or personal liberty. The petitioner respectfully points out that by carving out two classes of women, married and unmarried, and by denying the former the rights that are offered to the latter, IPC violates the married women’s right to equality.

It is also mentioned in the petition that this denial of rights stems from the antiquated British morality, according to which, after marriage, a woman accorded perpetual consent for sexual intercourse whenever her husband desired it. However, the definition of what is to be considered moral has changed a lot since the 1860, the year when the Indian Penal Code came into force. While most of the countries have by now declared marital rape to be a criminal offence, the IPC still continues to treat it as an exception to Section 375, which criminalises rape.

Delhi High Court conducted the hearing to this petition, along with two other petitions, filed by the RIT Foundation, and marital rape victim Khusboo Saifi, which all question the marital rape exception, on 17thJuly, 2018. The bench, consisting of acting Chief Justice Gita Mittal and Justice C. Hari Shankar, said that “Marriage does not mean that the woman is all time ready, willing and consenting. The man will have to prove that she was a consenting party.”

The plea to make marital rape a criminal offence is being contested by the non-profit organisation Men Welfare Trust. The court didn’t agree to their claim that the use of force or threat of force is important elements to constitute rape. Kolkata based NGO, Hridaya, had also earlier opposed the plea to make marital rape a criminal offence, on the grounds that consent for physical relationship is for all time, when a person enters the institution of marriage.

The bench said, “"It is incorrect to say that force is necessary for rape. It is not necessary to look for injuries in a rape. Today, the definition of rape is completely different.” It also mentioned that force is not a pre-condition for rape. A man might also threaten to cut off his wife financially, unless she gives in to his physical needs.

However, the arguments remained inconclusive, and the next hearing is scheduled for 8th August, 2018.

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