The government has told the Delhi High Court that criminalizing marital rape may disrupt the institution of marriage and will also become an easy means to harass husbands. It also pointed out that there can be no lasting evidence in case of sexual acts between a man and his wife.
The affidavit filed by the Centre said, “It has to be ensured adequately that marital rape does not become a phenomenon which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands.”
“If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife,” it added.
The Centre stressed that marital rape is not defined in any law. However, rape is defined under Section 375 of the Indian Penal Code. Defining marital rape would call for a broad-based consensus of the society, it said. “What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view in its criminalisation is taken,” the affidavit added.
Just because other countries, mostly Western, have criminalised marital rape does not necessarily mean India should also follow them blindly. The government cannot criminalise marital rape as India has its own unique problems like illiteracy, lack of financial empowerment of majority of females, the mindset of the society, vast diversity in the cultures of states which implement the criminal law, and poverty etc.
Centre’s response came on petitions filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim. They challenged the exception to rape under Section 375 and Section 376B as unconstitutional.