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‘Should not blindly follow the lead of other countries on marital rape’ Centre to Delhi HC

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The news: The union government has told the Delhi High Court that just because other countries, mostly in the West, have criminalised marital rape does not mean India should blindly follow suit.

What they’re saying: In its written submissions opposing a slew of petitions seeking to criminalise marital rape in the country, the Centre told the high court that “India has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc., and these should be carefully considered before criminalising marital rape.”

  • Reiterating its previous position from 2017, the union government has stated that there is a great diversity in the cultures of Indian states and that it is necessary to involve state governments in the matter to learn their views in order to avoid complications later on.
  • It stated that the Law Commission examined the issue in its 172nd report, titled Review of Rape Laws, and did not recommend criminalising marital rape.
  • The government also stated that the high court lacks the authority to legislate on the matter, and that courts cannot usurp the power of the legislature.
  • “Removal of exception 2 of Section 375 IPC, which consciously would be akin to legislating a separate offence, which can only be done by the legislature in accordance with the doctrine of separation of powers prescribed in the Indian Constitution,” the written submissions stated.
  • The Centre reiterated its 2017 concern about gross misuse of the offence of marital rape, saying that it cannot be “ruled out.” It also stated that adequate procedural safeguards would have to be put in place.
  • “Furthermore, removing the Section 375 exception would make marital rape a cognizable, non-bailable, and non-compoundable offence.” This would eliminate the possibility of a settlement between husband and wife, which is permitted under Section 498A of the Indian Penal Code (domestic violence),” the union government stated.
  • Referring to the Supreme Court, the Centre stated that the apex court has spoken about the misuse of Section 498A of the Indian Penal Code, and that removing the exception in the rape law could open the floodgates to false cases being filed with ulterior motives.
  • “Reasonable restrictions on the Fundamental Rights guaranteed by the Constitution shall be imposed,” it stated.
  • It stated that the aspect of marital rape is sufficiently covered under the definition of domestic violence as “sexual abuse.” The Act defines the offence and provides adequate remedies. Furthermore, any act of unnatural sex between a man and his wife is expressly prohibited under Section 377 of the IPC.

When happened: The written submissions were filed on January 12 in response to a slew of PILs filed in 2015 by the NGO RIT Foundation, the All India Democratic Women’s Association, and two individuals who sought to overturn the exception in Indian rape laws on the grounds that it discriminated against married women sexually assaulted by their husbands.

  • Section 375 of the Indian Penal Code exempts marital rape and states that sexual intercourse between a man and his own wife, if the wife is not under the age of fifteen, is not rape.
  • In response to the pleas, the Centre has stated that if exception 2 of Section 375 is removed, all such cases will be dealt with in accordance with the jurisprudence applicable to the current Section 375 offences.
  • “The prosecutrix’s testimony is sufficient to convict the accused under Section 376 IPC.” Except for medical evidence, there is no reason to insist on corroboration. Except in the most extreme cases, the testimony of a woman who has been the victim of sexual violence must ordinarily be corroborated in material particulars. “There is rarely direct evidence of anyone other than the prosecutrix available,” according to the submissions.
  • It was stated that determining when the married woman’s consent was withdrawn would be difficult.
  • “Most circumstantial and corroborative evidence will be rendered ineffective in the case of marital rape,” it added.
  • The Centre stated in its August 2017 affidavit that the Supreme Court and various high courts have already observed a rising misuse of Indian Penal Code Section 498A (harassment caused to a married woman by her husband and in-laws) (IPC).
  • It went on to say that marital rape has not been defined in a statute or law, and that while the offence of rape is defined under Section 375 of the Indian Penal Code, defining marital rape will require a broad-based consensus of society.

In addition: However, in mid-January, the Union government informed the high court that marital rape could not be made a criminal offence until the Centre completed its consultation with all stakeholders, paving the way for comprehensive criminal law changes rather than “piecemeal” changes.

  • In response to a slew of petitions to criminalise marital rape, the Centre maintained that it is investigating the issue of broad changes in the country’s criminal law and that the petitioners could also make suggestions to the competent authorities.
  • It added that suggestions from chief ministers of all state governments and union territories, the Chief Justice of India, chief justices of all high courts, judicial academies, national law universities, the Bar Council of India, the Bar Council of all high courts, and members of both Houses of Parliament have been invited.
  • However, the affidavit, which was filed through the Union Ministry of Home Affairs, does not specify the date when opinions were solicited.
  • Tushar Mehta, the Solicitor General, later stated on January 17 that consultations are ongoing and that the State will need time to respond to the issue. The deadline for responding was extended on January 24 (Monday) after the Secretary of State stated that a half-hearted response would have an impact on the citizens of the country, adding that the dignity of a woman is at stake.

He stated that criminalising marital rape involves “family issues” and cannot be viewed from a “microscopic angle.” He went on to say that the situation can be postponed because nothing major is on the horizon.

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