The Delhi High Court is hearing a petition by several NGOs, in which they have requested to make marital rape a crime. The petitioners have challenged the constitutionality of Section 375 of the IPC saying that it discriminates against married women in respect of sexual harassment committed by their husbands.
(File photo: PTI)
New Delhi: The Delhi High Court on Tuesday said that there cannot be a distinction between the respect of married and unmarried women and a woman, whether married or not, has the right to say ‘no’ to a sexual relationship which is consensual.
The court said that the important point is that a woman is a woman and she cannot be weighed differently in any relation.
The High Court said, ‘To say that, if a woman is forced to have sex with her husband, then that woman cannot resort to section 375 (rape) of the Indian Penal Code and she will have to resort to any other criminal or civil law , not right.’
Hearing petitions seeking criminalization of marital rape, the bench asked, “If she is a married woman, doesn’t she have a right to say ‘no’?”
A bench of Justices Rajeev Shakdher and C. Hari Shankar said that exemption from prosecution of husband under Section 375 of the Indian Penal Code has created a wall and the court has to see that the wall is covered under Article 14 (Law) of the Constitution. 21) and 21 (protection of personal liberty and life).
The court listed the matter for Wednesday for further hearing. The bench was hearing petitions by NGOs, RIT Foundation and All India Democratic Women’s Association.
NGOs have challenged the constitutionality of Section 375 of the IPC on the ground that it discriminates against married women in respect of sexual harassment committed by their husbands.
According to Live Law, advocate Raghav Awasthi, appearing for the petitioners in Tuesday’s hearing, said that not keeping marital rape a crime is a violation of the rights given to married women under Article 21 of the Constitution.
Awasthi has Francis Corley Mulin v. Government of Delhi Citing the example of the Supreme Court, in this case, the Supreme Court discussed the psychological impact of rape on the victim, which means that it is a violation of the right to life and personal liberty guaranteed under the Constitution of India.
She said that there is no difference between a rapist and a married man who coerces her husband.
‘Any act of rape is punishable but there is a difference between a marital relationship and a non-marital relationship’
Earlier on Monday, advocate Karuna Nandy, appearing for one of the petitioners, had also argued that making marital rape an exception violates the right to honour, personal and sexual autonomy and self-expression of married women.
The Court then held that while women’s right to sexual autonomy cannot be compromised and any act of rape should be punished, there is a distinction between marital and non-marital relations on the basis of merits. Because in a marital relationship there is a legal right to expect proper sex from the spouse. This is the reason why marital rape has not been given a place in the criminal law.
Justice C. Hari Shankar, during the hearing, orally said that non-marital relations and matrimonial relations cannot be seen in equal terms.
Justice Harishankar said, “No matter how close a boy and a girl are, no one has the right to be expected to have sex.” Everyone has every right to say that I will not have sex with you, but marital relations differ from this because of my nature and qualities.’
The court questioned why the exemption granted to a married couple from the offense of rape remained in law for many years when the changed circumstances were to the contrary. At the same time, the court remarked that one possible reason for this was the wide scope of Section 375 of the Indian Penal Code, which treated all forms of unwilling sex as rape.
Justice Shankar also emphasized that the offense of rape is punishable and carries a sentence of 10 years. He said that the issue of removal of exemption in the case of marital rape needs to be ‘seriously considered’.
“There can be no compromise with a woman’s right to sexual and physical purity. Husband cannot force his wife. But the court cannot ignore what will be the consequence of abolishing it (marital rape exception).’
The judge also expressed his objection with regard to the use of the word ‘marital rape’, saying that every act of rape should be punished, but any form of undesired sex between husband and wife is termed as ‘marital rape’. To define over and over again is a thing already ingrained in the mind.
Justice Harishankar said, “There is no concept of marital rape in India… if it is rape, whether marital, non-marital or any kind of rape, then it should be punished. According to me, the repeated use of this word complicates the real issue.
Last week, the Delhi government told the High Court that marital rape is already a ruthless offense under the IPC.
The Delhi government’s counsel had told the court that courts have no power to legislate any new offense and claimed that married women and unmarried women have been kept separately under each law.
Delhi government’s lawyer Nandita Rao said, ‘Marital rape is a brutal crime in India. Married women and unmarried women are different under every law.’
Rao also said that even in the case of one of the petitioners, who has repeatedly claimed to be marital rape, the FIR is deemed to have been registered under Section 498A of the IPC for necessary action.
Section 498A of the Indian Penal Code deals with cruelty to a married woman by her husband or his relative, where cruelty means any willful behavior which is of such a nature as to lead to suicide. causes or causes serious injury or danger to life, body part health (mental or physical).
Senior advocate Colin Gonsalves, then representing the petitioner woman, argued that marital rape has been criminalized by courts across the world.
He said the Nepal Supreme Court has held that Hinduism did not exempt from the “heinous act of rape of a wife”. He also objected to the idea that marital rape is a Western concept. He referred to a US report indicating the existence of sexual violence between married couples in some Indian states.
The senior advocate said, “Marital rape is the biggest form of sexual violence, which happens in our homes. No matter how many times rape occurs in the institution of marriage, it is not recorded? This data is not recorded or analyzed. ,
He said that neither the family nor the police come forward to help.
(with input from news agency language)
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