The Delhi High Court will hear a public interest litigation seeking to strike down the provisions of the Indian Penal Code condoning marital rape.
In her petition filed through advocate Olivia Bang, Khushboo Saifi has challenged Exception 2 of section 375 of the IPC as being ultra vires Articles 14, 15 and 21 of the Constitution. She has also challenged Section 376B as unconstitutional.
Yesterday, the Bench of Acting Chief Justice Gita Mittal and C Hari Shankar issued notice to the Centre after hearing the petition.
The petitioner, a victim of marital rape and domestic violence, was compelled to run away from her house and seek shelter at a shelter home. At the home, on meeting with other women who faced similar ordeals, she decided to file the petition.
Senior Advocate Colin Gonsalves, appearing for the petitioner, contended that there is unreasonable classification between married and unmarried women with regard to rape laws and such classification lacks intelligible differentia.
The petition defined marital rape as,
“Unwanted sexual intercourse by a man with his own wife, without her express or implied consent, either forcefully or by the use of threat or coercion of physical harm. If rape is the genus, marital rape is its species.”
The petition further contended that society as a whole does not consider marital rape an issue of any significance and gives full immunity to the husbands.
“Victims of this unrecognized crime have practically no remedy to resort to.”
Citing Article 21, the petition stated that it is unfair and unjust for married women to be denied any kind of law for rape done by the husband simply because they are married. It is further stated that the common law rape exception is derived from an archaic notion of marriage which regarded wives as the property of husbands.
The petition further points out that martial rape has been made a punishable offence in as many as 51 countries including, most recently, Nepal.
“It is striking that 51 countries around the world have criminalised marital rape yet such has had no effect on India. There is no concrete legislation against marital rape.”
It is submitted that non-recognition of marital rape as an offence amounts to concluding that married women have no right over their body and violates Articles 14, 15 and 21 of the Constitution.
The Court asked as to how can such an exception be justified.
“Is rape an instrument of violence?”
The judges also observed that if domestic violence can attract penal consequences, then why can such consequences not be made applicable in cases of marital rape.
The matter will be next heard in August.