The Delhi High Court on Wednesday agreed to hear an organisation which engages men for gender equality and is supporting the petitions to make marital rape a criminal offence on the ground that sexual violence violated human rights.
A bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar allowed the intervention application by Forum to Engage Men (FEM) and made it a party in the petitions seeking declaration of Section 375 (offence of rape) of the IPC as unconstitutional on the ground that it discriminated against married women being sexually assaulted by their husbands.
Marital rape (or spousal rape) is an act in which one of the spouses indulges in sexual intercourse without the consent of the other.
The application filed by Dr Abhijit Das, a member of FEM which claims to be a network of organisations and individuals, said wives should not be reduced to objects and supported women’s right for effective decision-making on reproduction.
It said that marital rape was an exception in the law that took away the rights of the wives to say “no”, as also their right to say “yes” to consensual sexual intercourse.
“Marriage is a partnership between equals. However, men have historically assumed privileges including the privilege of having sex at their instance. Most women have been conditioned to accept that.
“The fact that some women have been driven to complain of coerced sex and sexual violence indicates that they are going through extreme levels of violence and coercion and have been literally pushed to the wall,” the plea said.
“We believe that in Indian society, a wife will only bring about such a complaint against her husband when there is actual non-consent and she is desperate,” it said.
It said that the members of the FEM believe that repeated sexual violence, even without physical violence, constitutes a grave human rights violation and should be treated as a crime. The court has agreed to examine the issue raised in PIls by NGOs RIT Foundation, All India Democratic Women’s Association and a man and a woman, who have sought striking down of the exception in the Indian penal law that did not consider sexual intercourse with a wife, not less than 15 years of age, as rape.
Advocate Karuna Nandy, appearing for the two NGOs, referred to the Supreme Court’s nine-judge judgement declaring right to privacy as a fundamental right and other verdicts, saying these have decided that a woman has a right to bodily integrity, sexual autonomy and reproductive choice.
The counsel, in her written submissions given in the court, said that in England, US, Nepal, Australia, married women are entitled to the full range of individual civil liberties and human rights.
Senior advocate Colin Gonsalves, appearing for a petitioner woman who was a victim of marital rape, argued that marriage cannot be viewed as giving a husband the right to coerced intercourse on demand.
He has said a marriage licence cannot be viewed as licence for a husband to forcibly rape his wife with impunity as a married woman has the same right of full control over her body as an unmarried woman.
The Centre, however, opposed the pleas and said marital rape cannot be made a criminal offence as it could become a phenomenon which may destabilise the institution of marriage and an easy tool for harassing the husbands.
The Centre, in an affidavit filed through central government standing counsel Monika Arora and Kushal Kumar, has said the Supreme Court and various High Courts have already observed the growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC.
Earlier, the Centre had defended its legislation, 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.
