While hearing the clutch of petitions seeking criminalization of marital rape, Delhi High Court was informed by the amicus curiae that the status of marriage between two parties cannot be sufficient reason to deny a wife the ability to prosecute her husband for marital rape.
Senior advocate Rajshekhar Rao who is assisting the court as an amicus curiae in the case submitted that a “rapist remains a rapist irrespective of the relationship”. He read out the Verma Committee Report which also recommended the criminalization of marital rape.
The High Court bench comprises Justice Rajiv Shakdher and Justice C Hari Shankar.
“Given the length and breadth of material that is before your lordships, I do not believe it is possible for anyone to say that there is any justifiable basis in thinking that the status of marriage between the two parties as being sufficient to deny the wife the ability to prosecute her husband for the act of rape,” Rajshekhar Rao told the bench.
Replying to the submissions which raised concern about the misuse of the law by wives, amicus curiae Rao submitted that apprehensions of misuse and protection of the institution of marriage cannot be a ground to sustain the marital rape exception in the Indian Penal Code (IPC).
He also stressed upon the need to assess whether Exception 2 to the Indian Penal Code withstands the test of Article 14 (equality) and Article 21 (right to life) of the Constitution.
“I do not believe that it is possible today for anyone to say that there is any justifiable reason in treating the status of marriage between two parties as being sufficient to warrant denying the wife the ability to prosecute her husband for the offence of rape,” he said.
He went on to add, “If there is a possibility of misuse, then section 376 (rape) of IPC can be misused against random strangers. Section 498A (cruelty) of IPC, as your lordships, have taken note that perhaps there is misuse, but your lordships have found a way to temper.”
He stated that it is time to bury provision or exception 2 in Section 375 of the Indian Penal Code which decriminalizes marital rape.
Delhi High Court has been hearing the PILs filed by RIT Foundation, All India Democratic Women’s Association, one man and a woman seeking criminalization of marital rape.
