- Apprentice Lawyer
- Legal Jobs
While dismissing the petition, a Division Bench of Chief Justice DN Patel and Justice C Hari Shankar observed that the Court did not have the power to legislate under Article 226 of the Constitution.
Presently, marital rape is not a ground for divorce under the Hindu Marriage Act, 1955, the Muslim Personal Law (Shariat) Application Act, 1937 or the Special Marriage Act, 1954.
The public interest litigation was filed by advocate Anuja Kapur.
The petitioner also sought a direction to the Centre to frame clear guidelines for the registration of cases related to marital rape.
The petitioner claimed that the plea was moved pursuant to a Delhi Government report to the High Court, stating that marital rape was already criminalized as cruelty under Section 498A of the Indian Penal Code (IPC).
To highlight the menace, the petitioner relied on several studies to quote the statistics pertaining to marital rape.
“…18 out of every 100 men across India believe that a husband has the right to get angry and reprimand his wife if she refuses to have sexual intercourse with her husband. At the state level, 43% men in Andhra Pradesh, 42.6% in Telangana, 29.5% in Mizoram, 21.75 in J&K, 20.3% in West Bengal and 19.9% in Karnataka felt the same way.
During the National Family Health Survey men respondents were asked if they agreed to the fact that a husband is justified in hitting or beating his wife if she refuses to have sex with him. Nine out of every 100 men across India agreed that a husband is justified in beating his wife if she refuses to have sex with him.“
The petition further added,
“Five out of every 100 women in India reported that their husband had physically forced them to have sexual intercourse with him even when they didn’t want it. At the state level 11.4% women in Bihar, 10.6% in Manipur, 9% in Tripura, 7.4% in West Bengal, 7.3% in Haryana and 7.1% in Arunachal Pradesh reported that they were physically forced by their husbands to have sexual intercourse with them even when they did not want to.“
It was thus argued that marital rape was no less an offence than murder, culpable homicide or rape per se, and that it has long-lasting physical and psychological consequences for women.
“It denigrates the honor and dignity of a human being, and reduces her to a chattel to be utilized for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.”
It was further submitted that since marital rape was neither a crime nor a context in cases of sexual assault, sexual abuse or aggravated assault, FIRs are not registered by the police at the insistence of a victim wife.
“…rather, it is being compromised (the complaint) by the Police Authorities to maintain the sanity of the marriage between the victim and the Husband.“
Therefore, the petitioner sought a direction to the frame appropriate laws and by-laws related to marital rape as a ground for divorce. Further, the fixing of appropriate punishment or penalties for marital rape was also sought.