The Delhi Government, on Thursday, contended before the Delhi High Court that the act of marital rape has already been criminalized as cruelty under Section 498A of the Indian Penal Code (IPC) and hence, there was no need for creating a new offence penalizing the same.
Section 498A criminalizes a situation where a married woman is subjected to cruelty by her husband or his relatives. Cruelty has been defined as any willful conduct which is of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.
The submissions were made before a Bench comprising Acting Chief Justice Gita Mittal and Justice C. Hari Shankar by Additional Standing Counsel Nandita Rao, on a bunch of petitions demanding that marital rape be declared as a criminal offence. The Petitions challenge Exception 2 to Section 375 which says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.
The Petitions also challenge Section 376B of the IPC, which says that whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. This differential punishment has been challenged as being arbitrary and unconstitutional.
Contesting these assertions, Ms. Rao contended that non-criminalization of marital rape under Section 375 of IPC does not violate Article 21 of the Constitution of India as the wife is not compelled to live with a sexually abusive husband under personal laws, which make it a ground for divorce.
She further asserted that if the Court finds exception 2 of Section 375 violative of Articles 21 and 14 of the Constitution of India, the Court will have to strike down the entire section as Courts cannot create new offences. Such creation of a new offence, she said, would be violative of Article 20 of the Constitution of India.
Ms. Rao contended that the definition of marital rape under the Domestic Violence Act as sexual abuse is akin to the definition of cruelty under Section 498A. The focus, she said, is not on penetration but on the impact on the dignity and mental and physical health of the wife due to the act of sexual abuse, which may or may not be penetrative. She, hence, asserted that there needs to be a shift from a culture of viewing rape as an act of sexual penetration to one of sexual violation.
Two of the Petitioners in the case- NGO RIT Foundation and All India Democratic Women’s Association (AIDWA)- had earlier submitted before the Court that when sodomy, sexual assault, murder are not de-criminalized in marriage, there is no reason rape should be.
Ms. Karuna Nandy, the Counsel for the Petitioners, through her oral and written submissions before the Court, had averred that the fiction of legal marital rape created by Exception 2 of Section 375 of the Indian Penal Code, 1860  has caused millions of women to be legally raped.
She had then contended that “even if one married woman suffers her constitutional rights being violated by legal rape, she must have the protection of the Constitution of India” as she cited the observation of the apex court in the privacy judgment wherein it observed that, “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favorably regarded by majoritarian opinion”.