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In response to questions about the criminalisation of marital rape, the Union Women and Child Development Ministry on April 1, 2022 said the “the matter is sub-judice before the Delhi High Court”.
BJP MPs Shardaben Anilbhai Patel and Mitesh Rameshbhai Patel asked Union Minister Smriti Irani whether the central government had formed an opinion regarding the inclusion of marital rape as an offence under the Indian Penal Code. They also asked if the government acknowledged the prevalence of rape or sexual harassment in marital life or had conducted any study in this regard.
Responding to this, Irani said, “The department-related Parliamentary Standing Committee on Home Affairs, in its 146th report had recommended a need for a comprehensive review of the Criminal Justice System. Earlier, the Committee in its 111th and 128th reports had also stressed upon the need to reform and rationalize the criminal law by introducing a comprehensive legislation in Parliament rather than bringing about piece-meal amendments in respective Acts. Accordingly, based on the feedback received from stakeholders, appropriate decisions would be taken by the government at appropriate time.”
She also mentioned that the review petition by the RIT Foundation in this matter is still sub-judice. During Rajya Sabha proceedings in February, Irani had commented that condemning every marriage and every man in India as “violent” and “a rapist” respectively is not “advisable”. The comment was in response to an Opposition leader’s question about Section 3 of the Domestic Violence Act and the definition of domestic violence, said Hindustan Times.
While these discussions play out in the Parliament and the Delhi High Court, the Kerala High Court in August 20201 termed marital rape as a form of cruelty and a valid ground for divorce. At the time, the Court had said that modern social jurisprudence views spouses as equal partners. As such, the husband cannot claim any superior right over the wife’s body or with reference to individual status.
“Treating wife’s body as something owing to husband and committing sexual act against her will is nothing but marital rape,” the court observed.
Similarly, days after Irani’s comment in the Rajya Sabha, the Karnataka High Court rejected the petition of a husband seeking dropping of rape charges filed by his wife. The Court took note of how sexual intercourse and other sexual acts by husbands stand exempted. This means that married men and women and unmarried men and women are given different statuses.
“It is this inequality that destroys the soul of the Constitution which is Right to Equality. The Constitution recognizes and grants such equal status to woman as well,” said the Court.
Related:
Karnataka HC refuses to drop rape charges against husband
Marital rape can be grounds for divorce: Kerala HC