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Marital rape biggest form of sexual violence against women & a cruelty, Delhi HC told

New Delhi, Jan 7 (PTI) Marital rape is the biggest form of sexual violence against women, the Delhi High Court was told on Friday, even as the Delhi government submitted that this act is already covered as a “crime of cruelty” under the Indian Penal Code (IPC).

The court was hearing a batch of petitions seeking criminalisation of marital rape.

“Marital rape is the biggest form of sexual violence which happens in the confines of our homes. How many times does rape take place in the institution of marriage and is never reported? This figure is not reported or analysed”, said senior advocate Colin Gonsalves, who contended that neither the families nor the police authorities come to the help of the victims.

The public interest ligitations were filed by the NGOs RIT Foundation and All India Democratic Women’s Association, and a man and a woman seeking the striking down of the exception granted to husbands under the Indian rape law.

Gonsalves, who is representing the petitioner woman, argued before a bench of Justices Rajiv Shakdher and C. Hari Shankar that courts all over the world have recognised marital rape as an offence and abrogated the concept of a wife’s irrevocable consent for establishing sexual relations.

Delhi government lawyer Nandita Rao submitted that married women and unmarried women were placed differently under every single law.

“Marital rape is a crime of cruelty in India. Married women and unmarried women are different under every single law”, she said.

Rao also said that even in the case of one of the petitioners, who claimed to be a victim of repeated marital rape, a first information report stood registered for an offence under Section 498A of IPC for necessary action.

Section 498A deals with cruelty to a married woman by her husband or his relatives, where cruelty means any wilful conduct which is of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.

Gonsalves stated that the value system and women rights have evolved with the passage of time, and relied on a series of judgements passed by courts in the United Kingdom, United States, Canada, European Union and Nepal as well as international treaties to submit that an argument of a wife’s assumed consent was untenable.
He said the Nepal Supreme Court has observed that the Hindu religion did not exempt the heinous act of rape of a wife.

Gonsalves further objected to the notion that marital rape was a western concept and highlighted a United Nations report which indicated the prevalence of sexual violence between married couples in certain Indian states.

In 2018, the city government had told the predecessor bench hearing the case — headed by then Acting Chief Justice Gita Mittal — that wherever a spouse indulged in sexual relations without the willingness of the other, it was already an offence under IPC and a woman was entitled to refuse sexual relations with her husband as per the right to bodily integrity and privacy under Article 21 (protection of life and personal liberty) of the Indian Constitution.

The union government, in its affidavit filed in the case, has said that marital rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing the husbands.

The petitioner NGO has challenged the constitutionality of Section 375 of IPC on the ground that it discriminated against married women being sexually assaulted by their husbands.

The hearing in the case will continue on January 10.

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