Delhi HC says misuse of marital rape law cannot be a valid ground for not criminalising it

A bench of Delhi High court comprising of Chief Justice Gita Mittal and Justice C Hari Shankar, on Monday held that the misuse of a penal provision cannot be an argument for not criminalising an act. The bench was hearing Public Interest Litigation (PILs) filed by NGOs-RIT Foundation and the All India Democratic Women's Association, seeking criminalisation of marital rape. Advocate Karuna Nandy representing the petitioner told the court that around 20 million married women in India are victims of marital rape and in the absence of any penal provision for the same, the women are continuously suffering. She further said that the nations like Pakistan and Bhutan have criminalised marital rape and that Sri Lanka has already introduced a proposal for doing so. The offence of rape is specified under section 375 of the Indian Penal Code, 1860, however, it categorically excludes & lsquo marital rape' from its ambit and hence provides that sexual intercourse by a man with his own wife, who is not below 15 years of age, is not rape. Section 376 of IPC that provides for punishment of rape states that, whoever commits the offence of rape shall be punished with imprisonment for a term of not less than 7 years that may extend up to 10 years and fine, unless the woman raped is his own wife, and is not under 12 years of age, in which case, he shall be punished with imprisonment for a term which may extend to 2 years with fine. The Supreme court had in October last year, held that sexual intercourse with a girl below 18 years of age, even by the husband, would amount to rape. It, thus, read down the exception to section 375 IPC, and held that husbands can also be tried for the rape of their wives who are between the age of 15-18 years. However, there is no penal provision to punish a man for raping his wife who is above 18 years of age. The petitioner in the present case argued that although there might be false complaints of marital rape brought by the women against their husbands, such cases are very rare. Hence, the arguments like the possibility of false cases being lodged, and that it could destabilize the institution of marriage and that the penal provision will act as a tool for the wives to harass their husbands are not a valid defense for not criminalizing marital rape. The Centre, however, told the court it is desiring to retain the exception clause of section 375 as child marriages were taking place in India and that 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. The NGO however, contended that through this petition they are also challenging the constitutional validity of section 375 which discriminates between married and unmarried girls when it comes to rape. The court will be deciding on criminalising marital rape. It however agreed with the petitioner and said, & quot Misuse cannot really be an argument on whether an act should be criminalised or not& quot .