Delhi High Court
Delhi High Court

“May destablize marriage, Tool for harassing husbands”: The Centre’s stand on marital rape

Ashutosh Gambhir

Giving the impression that it is in no mood to make marital rape an offence, the Union of India yesterday made certain submissions which may be construed as patriarchal in a writ petition seeking to make marital rape an offence.

The Centre, through Standing Counsel Monika Arora, in the matter of RIT Foundation v. Union of India, submitted that what may appear to be marital rape to an individual wife, may not appear so to others. It was further stated that it has to be ensured that marital rape does not become a phenomenon which may destabilize the institution of marriage, apart from being an easy tool for harassing the husbands.

If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife.”

It was also stated that merely deleting Exception 2 to Section 375 of IPC – which excludes intercourse between husband and wife from the ambit of rape – will not stop marital rape, as moral and social awareness are vital in stopping such an act.

Appearing for the petitioners, Senior Advocate Colin Gonsalves, stated that the Exception is unconstitutional, as marriages cannot be viewed as giving the husband the right to coerced intercourse on demand. A married woman has the same right of full control over her body as an unmarried woman.

Gonsalves also stated that marital rape exception classifies unmarried men differently from married men which can be challenged under Article 14. Also, there is no rational basis for differentiating between marital rape and non marital rape.

“The rationale traditionally given is based upon archaic notions about consent and property rights incidental to marriage that are unable to withstand even elementary scrutiny.” 

The Bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar asked the petitioners whether there are any judgments which deal with the issue at hand, to which the petitioners replied in the negative.

Making the issue more convoluted, a men’s welfare group has also moved an application seeking intervention in the writ petition in order to represent the interests of men who, they claim, would get victimized at the hands of women who file false cases of rape, sexual harassment, domestic violence etc.

The application states that the removal of protection given to husbands under Section 375 will result in a law which will be prone to misuse and innocent husbands would be subjected to cruelty by wives.

The application also argues that existing laws are very much capable of dealing with cases of sexual abuse of women and there is no need to either bring a fresh law to deal with it, nor is there a requirement to withdraw the protection granted to husbands under Section 375.

The application raises many amusing arguments, like,

“A person getting married, be it wife or husband anywhere in the world loses his/ her right to perform sexual act with anyone other than the spouse. So when a person is getting married, he or she is giving consent to the spouse to have sex and any such sexual act can not be termed as Rape.”

“On the one hand there is right to say no to a sexual intercourse to the spouse and on the other hand there is a right to have a conjugal relationship between the spouses. The two rights have to go hand in hand so that a happy marital relationship may sustain during the lifetime of the spouses. If there is a breach of understanding, legal recourse should be available to the spouses but in no circumstances a husband should be branded as a Rapist.”

“That the amendment in a law (making marital rape an offence) will impact the social fabric and the family system of the country. It cannot be dependent on how many countries have such laws, and in case this is any basis then there are far more countries in the world which do not have martial rape as compared to the number of countries which have such laws.”

Read the Centre’s submissions:


View the Men’s Rights organisation’s IA:

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