Marital Rape as a Ground for Divorce

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June 02, 2019

A plea has been filed with the Supreme Court for seeking direction to the Central Government to issue guidelines and prepare a statutory framework for inclusion of “marital rape” as a ground for divorce under the Hindu Marriage Act, 1955. Though the contentious issue of “marital rape” has time and again been brought up before the Indian Judiciary, till now no verdict concretely establishes or renders a specific explanation to the offence of marital rape in India.  

When the matter came up before the Apex Court yesterday, the Court refused to intervene in the matter and directed the Advocate / Petitioner to approach the Delhi High Court.

In the meanwhile, herein we present before you recent stance of two High Courts in India which clearly indicates that Judiciary also does not conform to the practice of marital rape in India and believes it to be a crime against women.

Gujrat High Court’s Stance on marital rape

In a recent case Nimeshbhai Bharatbhai Desai v. State of Gujarat, the Gujarat High Court took up the controversial and much deliberated issue of marital rape in India. Hon’ble Justice J.B. Pardiwala while making remarkable observations on the concept of marital rape has condemned the inaction of the Government and Legislature on the act of marital rape in India. Even after reading the whole judgment and perusing through the remarks made by Justice J.B. Pardiwala against the legal status of marital rape, the question that lingers in the mind is that why marital rape is not an offence in India?\

The Court while passing it’s verdict made the following essential observations in the case:

  • Husband forcing wife to have unnatural sex- To arrive at its decision with reference to the issue whether a wife can initiate proceedings against her husband for unnatural sex under section 377 of the IPCthe High Court heavily relied on Supreme Court’s decision in the case of Suresh Kumar Koushal vs. Naz Foundation & Ors.[1], to hold that section 377 of the IPC does not criminalize a particular class of people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates the sexual conduct regardless of the gender identity orientation. What has been held by the Supreme Court is that consent is not the determining criterion in the case of unnatural offences and rather any offence which is against the order of nature and can be described as carnal penetration would constitute an offence under section 377 of the IPC thereby making it obvious that a wife can initiate proceedings against the husband under section 377 for unnatural sex. Thus, when the husband is alleged to have forced his wife for oral sex and actually indulges into the same, the same would constitute an offence under section 377 of the IPC.
  • Outraging Modesty of Women– If a person assaults or uses criminal force against any woman intending to outrage, or knowing it to be likely that he will thereby outrage, her modesty, he commits an offence under section 354 of IPC.

Delhi High Court’s stance on Marital Rape

The Delhi High Court recently took up a batch of petitions filed by NGO RIT Foundation and All India Democratic Women’s Association and a marital rape victim who have challenged the constitutionality of Section 375 of IPC (the provision defines rape and the exception to Section 375 states that Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape).

The Petitions instituted with the High Court have been challenged by the NGO, Men Welfare Trust on the ground that married women have been given adequate protection under law against sexual violence. The High Court to the said contention replied that “a rape is a rape. Is it that of you are married it is okay, but if you are not then it is a rape? Why it should be exception under Section 375 of IPC? Force is not a pre-condition for rape.”

The Court has also remarked that marriage does not mean that she is ready and willing to submit herself for sexual act of her husband.”