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Shouldn’t blindly follow foreign countries on marital rape: Center in Delhi HC | Latest India News

NEW DELHI: The Union government told the Delhi High Court that just because other, mostly Western, countries have criminalized marital rape does not mean India must necessarily blindly follow them.


Opposing a slew of pleas to criminalize marital rape in the country, the Centre, in its written submissions, told the High Court that “India has its own unique problems due to various factors such as the literacy, lack of financial empowerment of majority of women, societal mindset, great diversity, poverty, etc. and these need to be carefully considered before marital rape is criminalized”.

Reiterating its earlier position from 2017, the union government said that there is great diversity in the cultures of Indian states and there is a need to engage state governments in this matter to know their opinion in order to avoid any complications at a later stage.

He said that even in its 172nd report titled Review of Rape Laws, the Laws Commission considered the issue and did not recommend the criminalization of marital rape.


The government also said the High Court has no power to legislate on the matter, adding that the courts cannot usurp the power of the legislature.

“Removal of Exception 2 from Section 375 of the ICC which would consciously amount to legislating a separate offense which can only be committed by the legislature in accordance with the doctrine of separation of powers prescribed in the Constitution of India “, indicate the written observations.

Reiterating its 2017 apprehension of gross abuse of the offense of marital rape, the Center said the same cannot be “ruled out”. He said adequate procedural safeguards will also need to be put in place.

“Furthermore, removing the exception from section 375 would make marital rape a recognizable, non-dischargeable and non-aggravating offence. It would end the chances of settlement between husband and wife, which is possible under the Section 498A of the Indian Penal Code (Domestic Violence),” the union government said.


Referring to the Supreme Court, the Center said the Supreme Court spoke about the misuse of IPC 498A and the removal of the exception in the rape law may also open the floodgates for bogus deals made with rears. -thoughts.

“Reasonable restrictions will be imposed on fundamental rights guaranteed by the Constitution,” he said.

He said the aspect of marital rape is sufficiently covered under “sexual abuse” in the definition of domestic violence. The offense and adequate remedies have been provided under the law. In addition, any unnatural sexual act between a man and his wife is also covered by IPC Article 377.

The written submissions were filed on January 12 in response to a group of PILs filed in 2015 by the NGO RIT Foundation, the All India Democratic Women’s Association and two individuals who sought to strike down the exception in India’s labor laws. rape on the grounds that it was discriminatory. against married women who have been sexually assaulted by their husbands.


The exception in article 375 of the ICC decriminalizes marital rape and stipulates that the sexual intercourse of a man with his own wife, the wife not being less than fifteen years old, does not constitute rape.

Further objecting to the pleas, the Center stated that in the event that Section 375 Exception 2 is removed, all such cases will be dealt with in accordance with the case law applicable to current offenses committed under Section 375. .

“The prosecutor’s testimony is sufficient to convict the accused under article 376 CPI. There is no reason to insist on corroboration except on medical evidence. The testimony of a woman victim of sexual violence must normally be corroborated in all but the most rare material details. Rarely is direct evidence from anyone other than the prosecutor available,” the submissions read.


He said it will be difficult to determine when consent was withdrawn by the married woman.

“Most circumstantial and corroborating evidence will become futile in cases of marital rape,” he added.

In its August 2017 affidavit, the Center said the Supreme Court and various high courts have already observed the growing abuse of Section 498A (harassment of a married woman by her husband and in-laws). of the Indian Penal Code (IPC).

He further stated that marital rape has not been defined in any law or statute and that although the offense of rape is defined in Article 375 of the ICC, the definition of marital rape will require broad consensus of the society.


However, in mid-January, the Union Government advised the High Court that marital rape could not be criminalized until the Centre’s consultation with all stakeholders was completed, opening the way to comprehensive criminal law changes instead of “piecemeal” changes.

In submitting a new affidavit in response to a series of petitions seeking to criminalize marital rape, the Center maintained that it was considering significant changes in the country’s criminal law and that the petitioner could also provide suggestions to competent authorities.

Stressing that changing the criminal law is “a continuous process”, he added that suggestions had been sought from the Chief Ministers of all State and Union Territory governments, the Chief Justice of India, Chief Justices of all High Courts, Judicial Academies, National Universities of Law, Bar Council of India, Bar Council of all High Courts and Members of both Houses of Parliament.


The affidavit, filed with the Union Home Office, however, does not mention the date the opinions were solicited.

Later, on January 17, Solicitor General Tushar Mehta said consultations were underway and the state would need time to respond to the matter. The deadline for responding was extended on January 24 (Monday), after the SG said a half-hearted response would affect the country’s citizens, adding that a woman’s dignity is at stake.

He said the criminalization of marital rape involves “family issues” and cannot be viewed from a “microscopic angle”. He added that the matter can wait as nothing imminent will happen.


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