After SC outlaws sex with minor wife, Delhi HC to take up issue of marital rape on 2 January

New Delhi: The Delhi High Court said the issue of marital rape, an act in which a spouse indulges in sexual intercourse without the other’s consent, was of huge ramifications and tremendous importance. The high court fixed 2 January next year to continue hearing arguments in the matter in which some NGOs, espousing the cause of women, have raised the issue of sexual violence in marriage in India. The matter was listed before a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar which during the brief hearing noted the concern raised by the NGOs, RIT Foundation and the All India Democratic Women’s Association. [caption id=“attachment_3092894” align=“alignleft” width=“380”] File image of Delhi High Court. Getty images[/caption] The court asked senior advocate Raju Ramachandran, who is assisting it as an amicus curiae, to freely express his views on the issue in which the Centre has maintained that marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and become an easy tool to harass the husbands. Ramachandran told the bench that he will come up with his views after hearing the submissions of the Centre and the NGOs. Advocate Karuna Nandy, appearing for the two NGOs, tried to impress the bench by citing few studies and research to press for the prayer to declare forcible sexual intercourse between married couple as an offence. She elaborated by referring to the 2005 data of National Crime Record Bureau (NCRB) about the gravity of the situation. However, without going any further, the bench deferred the hearing with the observation that “the issue has huge ramifications. It is of tremendous importance.” In a related development, the Supreme Court in its historic verdict in October this year, has held that sexual intercourse with a girl below 18 years of age, even by the husband, would amount to rape. It has criminalised sex with a wife who is not a major. The apex court read down a provision in the Indian Penal Code of 1860 exempting males from being tried for rape if the wives were between the age of 15 and 18 years. The top court’s verdict will have ramification in the petition pending before the high court. In the original petition before the high court, the petitioners had highlighted that the provision under the IPC did not consider non-consensual sexual intercourse with a wife, above 15 years of age, as rape. The petitioners submitted that there was a need to strike down the exception clause under Section 375 of IPC that says that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The court is also hearing two intervention applications, one in support of pleas to make marital rape an offence and the other opposing it. The Centre had advocated retaining the exception clause in Section 375 saying child marriages were taking place in India and the decision to retain a girl’s minimum age as 15 years to marry was taken under the amended rape law to protect a couple against criminalisation of their sexual activity. The NGOs’ counsel had said that they have challenged the constitutionality of section 375 (rape) of the IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.