Munmun Kaur
Published On: January 18, 2022 at 11:20 IST
Senior Advocate Rajshekhar Rao on January 18, argued before the Delhi High Court 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.
Advocate Rao is serving as Amicus Curiae in the batch of petitions filed before Delhi High Court challenging the exception provided in Section 375 of the Indian Penal Code which exempts non-consensual sex between husband and wife from the ambit of rape.
Advocate Rao submitted before a Division Bench of Justices Rajiv Shakdher and C Hari Shankar that it is time to get rid of the exception and criminalize marital rape rather than waiting for the Parliament to do so. The Parliament had ample opportunities to take care of it after the Constitution was enacted or even after several Law Commission Reports made similar recommendations but it did not.
Advocate Rao in response to the argument that a new offence will be created if the exception is struck down cited the Independent Thought Judgment. He said that the Supreme Court in the Independent Thought case held that sexual intercourse with a girl below 18 years of age is rape regardless of whether or not she is married. The Apex Court in that case had said that it was not creating an offence since it already existed under section 375, IPC. He further elaborated that although the whole provision was challenged, the Apex Court limited the issue to the interest of children and did not decide on the issue of marital rape.
The Amicus Curiae concluded his submissions by referring to a tagline of Doordarshan which urged people to wear helmets, “Marzi hai aapki, aakhir sar hai aapka”. He said, in the context of the inability of women to prosecute their husbands for rape, the tagline should be, “Marzi hai aapki, aakhir var hai aapka”.
The Bench observed that the Court cannot let the issue hang for long as it would lead to more speculations. The matter is listed on January 19.