High Court Questions Centre on Marital Rape: ‘How Do You Justify The Exception?’

The Delhi high court is hearing three writ petitions that question the exception under Section 375 that allows a man to rape his wife is she is more than 15 years old.

New Delhi: The Delhi high court on Tuesday asked the Centre to provide justification for the exception under section 375 that allows a man to rape his wife if she is more than 15 years old, a law challenged as unconstitutional by three civil petitions.

“How do you justify the exception?” acting chief justice Gita Mittal asked advocate R.K. Kapoor, representing the Union of India, before the packed courtroom.

The three petitions were filed against the Union of India by an NGO, the RIT Foundation, the All India Democratic Women’s Association (AIDWA) and marital rape victim Khusboo Saifi. They challenge section 375, exception 2 as unconstitutional, inhumane and out of sync with the world, where a range of countries from Nepal in South Asia to the United States and Britain criminalise marital rape.

The petitions argue that the exception, by discriminating against married women, violates Articles 14 and 15 of the constitution, which prohibit discrimination without an intelligible basis, Article 21, which guarantees the right to life and personal liberty, and Article 19 which should guarantee the freedom to express or withhold sexual desire in all consensual contexts.

“If a man rapes a woman, it’s a crime. If a man marries a woman and rapes [her], he’s exempted, it’s legally acceptable,” said Colin Gonlaves, advocate for marital rape survivor Saifi.

Karuna Nundy, lead advocate on the petitions filed by RIT and AIDWA, described three categories of women victims – single or divorced, separated and married. She pointed out that only the last category is not protected from rape.

“It’s criminal to beat your wife, it’s criminal to kill your wife, But if you rape your wife, that is legal”. Nundy said. “A RICE Institute study that looks at government health data shows that only about 3 % of all rapes happen outside marriage, so most rape is legal rape. ”

Advocates packed the front row of the courtroom on Tuesday and behind them clustered a group of ‘men’s rights’ activists from the Save Family Foundation. They filed a counter-petition in 2016 arguing that rape laws were gender-biased and misused by women in domestic disputes.

“There is nothing called rape inside the marriage,” said activist Amit Lakhani. “If you feel you’re being raped, a man or a woman, you can simply walk out of the marriage.”

The ‘men’s rights’ campaigners have a narrative of men being framed by rape laws and cite data like a report by the Delhi Commission for Women, which said 53% of rapes reported in the city in 2014 were false. However, the number included all rape reports dropped before they reached court, regardless of the reason. Indeed, the petitioners’ advocates argued on Tuesday that courts are well-equipped to deal with false complaints, which occur often under other laws.

In 2015, an estimated 95% of rape victims knew the offender and at least 2% were former husbands or partners, the National Crimes Records Bureau reported. Ranjana Kumar, director of the Centre for Social Research, runs five rape crisis centres in Delhi which receive around 7,800 cases each every year. Those include marital rape complaints, although Kumar said the exact number is undocumented because there’s no law under which to report them.

Men’s rights activists argue that married women can file offences under Section 498, which covers domestic violence, but advocates say the law is not strong enough on rape.

“That is problematic because it’s like saying that if somebody is guilty of murder, then they should be able to get away with it by paying blood money,” said Raghav Awasthi, advocate for the RIT Foundation petition. “Domestic violence is civil proceedings and an act of rape is a crime.”

It was the stories of marital rape victims, like a woman whose husband forced her to have sex three days after undergoing a C-section, that pushed Awasthi and his mother, RIT Foundation director Chitra Awasthi, to file the first petition in 2015.

The high court threw out the petition later that year because a similar matter was pending before the Supreme Court. But RIT filed a review petition proving that the Supreme Court petition from NGO Independent Thought differed because it challenged marital rape only if the victim is under 18. The high court accepted and took up the matter in January 2016.

Social workers and advocates stressed the importance of having a law on the books to legitimise the issue of marital rape, but emphasised that law alone is not enough to change society.

“The first step to break the silence is when you have the tool to validate,” Ranjana Kumar said. “Controlling women’s sexuality and bodies is the last bastion of male power. To smash it is going to take time.”

All three petitions are listed for hearing on August 28.