Homeइन फोकसआलेखIndian judiciary dilemma over marital rape issue

Indian judiciary dilemma over marital rape issue


New Delhi ( Nirnimesh Kumar for Ganatantra bharat) : After reading down Section 377 (sodomy) and decriminalising  adultery, the Indian judiciary is once again caught on horns of dilemma over marital rape.

Women’s rights advocacy individuals and groups have approached the Delhi High Court challenging an exception clause in Section Section 375 ( definition of rape) of the India Penal Code.

The exception exempts the husband of an 15-year- and-above-old wife from being prosecuted for rape even if he forces on her.

The petitioners’ argument is that the exception clause is discriminatory against women and gives men carte blanche to have sex with his wife without let and hindrance, ignoring her liberty to deny.

“Exception 2.Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape,” Section 375 says in the exception clause

Advocates arguing for deletion of the exception clause ague that it is against Section 21 of the Constitution which guarantees right to personal liberty.

They argue that there is no undertable difference between a rapist and a married man in case of forceful intercourse.

Those who are opposing the plea argue that Parliament retained the exception clause keeping in view Indian society.

They also argue the striking down the exception will amount to creation of a new offence.

The Union government is of the view that the forcible sex by men with their wives cannot criminalised without taking the opinions of all the stakeholders.The Supreme court in 2018 decriminalised homosexuality between two consenting adults. However, it remains an offence if indulged by force.

Similarly, the court deleted adultery as an offence, on the ground of adult woman’s fundamental right of choice to have sex with anybody while being in marriage.

The law was that if a man has sex with her woman without the consent of her husband, he is liable to be imprisoned up to five years

The marital rape issue might prove another addition to women rights repertoire if the court criminalises it.

(Nirnimesh Kumar is Senior Journalist & Expert on legal issues)

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