Marital Rape - Forcible Sex By Husband Can't Be Labelled Rape; At Worst Sexual Abuse; Wife Has Other Remedies: NGO Tells Delhi High Court

The Delhi High Court on Tuesday continued hearing a batch of petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape.

Advocate RK Kapoor representing NGO Hridey today made rejoinder submissions opposing the criminalisation of marital rape before a bench of Justice Rajiv Shakdher and Justice C Hari Shankar.

Kapoor submitted that forcible sexual intercourse between a husband and his wife in a marital relationship cannot be labelled as rape and at worst, can only be called a sexual abuse. He said that the said fact would be clear from the definition of cruelty as defined under the Domestic Violence Act 2005.

Furthermore, Kapoor also argued that a wife cannot compel the Parliament to prescribe a particular punishment against the Husband to satisfy her ego, while seeking to criminalize the act of marital rape.

"It is submitted that Parliament was not that unwise that on the one hand it exempted Husband under exception 2 and on the other hand it covered the Husband under the Domestic Violence Act," he submitted.

Reading his additional written submissions filed in the matter, Kapoor argued that it will not be correct to argue that sexual act in a marriage is an individual act and that the institution of marriage is not going to suffer in case exception 2 is struck down.

Furthermore, Kapoor also told the Bench that the retention of exception 2 by the Parliament, on the basis of reasonable classification, cannot be found fault with.

"That if Husband has used force or intimidation in the case of so-called marital rape, there are other sufficient provisions in IPC and other Statutes. Sexual intercourse between husband and wife in marital relationship cannot be a labelled as rape and at the worst it can be called a sexual abuse only, which would be clear from the definition of cruelty as defined under Domestic Violence Act 2005," Kapoor submitted.

He added "This is why Exception 2 has been retained and Parliament has covered such an act of sexual abuse under cruelty, and has taken it out of the purview of Rape as defined under S. 375 IPC, and exempted Husband from the severity of S. 376 IPC."

Further submitting that there are sufficient provisions in favour of wife, Kapoor argued that it cannot be said that the Parliament was not mindful as to the rights of the wife.

"Therefore, it cannot be said that Parliament has legalised the act of sexual abuse by the Husband," he added.

He also argued thus:

"We the people of India have constituted three organs namely, Legislature, Executive and Judiciary. That there are limitations on the powers of the Court in the matter of Judicial Review. It cannot be that one organ, legislature, gives a protection to the citizen (exception 2) and the other organ, judiciary, not only can take it away, but can make it an offence also. It is a settled law that what cannot be done directly can also not be done indirectly."

Kapoor also argued that the discussion regarding a sexual worker cannot be compared with the marital life.

"A perpetrator cannot claim restitution of conjugal rights against sex worker and correspondingly sex worker cannot claim regular maintenance from a perpetrator. There is no emotional relationship between sex worker and the stranger. The relationship between husband and wife is a package of a large number of mutual rights and obligations which are social, phycological, religious, economic etc. It cannot be limited to just one event of consent for sexual relationship. There are major rights and obligations under family system which comprise of children born out of wedlock, parents, parents-in-law etc." he argued.

According to Kapoor, it was argued that institution of marriage is a different concept than a stray relation between a sex-worker and a stranger. He said that such a comparison would rather be an insult to the Institution of Marriage.

With the aforesaid, Kapoor concluded his submissions in rejoinder. The matter will now be heard on January 27.

Yesterday, Senior Advocate Rebecca John appearing as amicus curiae in the matter concluded her submissions. He submitted that the retention of exception 2 of Sec. 375 of IPC will not be constitutional.

Section 498A IPC Not A Remedy Against Marital Rape: Amicus Curiae Rebecca John To Delhi High Court

John had also submitted that availability of other provisions in various legislations including  Sections 498A, 304B of IPC, Domestic Violence Act and other civil remedies, are insufficient to deal with the offence of rape under sec. 375, as regards to a wife alleging rape by her husband.

The petitions against marital rape have been filed by NGOs RIT Foundation, All India Democratic Women's Association and two individuals.

Case Title: RIT Foundation v. UOI and other connected matters