Could open floodgates of false cases, says Centre on criminalisation of marital rape

The Delhi High Court has been hearing a batch of petitions seeking criminalisation of marital rape. In written submissions filed in court on January 12, the central government said on the matter that the “apprehensions of gross misuse of the offence of marital rape cannot be ruled out”.

Further, the Centre said that criminalisation of marital rape “could open the floodgates of false cases being made with ulterior motives”.

The petitions in the high court challenge Exception 2 to Section 375 of the Indian Penal Code, which states that any forceful sexual act performed by a man on his own wife is not rape as long as she is above 15 years of age.

In the latest update in the case, on Friday, the Centre again asked the court for more time to finalise its stand on criminalisation of marital rape.


In its written submissions, the Centre said, “What constitutes marital rape and what does not would need to be defined precisely before a view on criminalisation is taken.”

Citing an order in which the Supreme Court had lamented the misuse of dowry and cruelty laws, the Centre argued that “adequate procedural safeguards” would have to be put in place. This, it said, can only be done by the legislature and not by court orders. In addition, the Centre claimed that a court order to criminalise marital rape would be the same as “legislating a separate offence”, which is not within the powers of the judiciary.

The central government also stated that India cannot “blindly follow” western countries which have criminalised marital rape as India has “unique social conditions such as lack of literacy, poverty, lack of financial empowerment, mindset of society, etc.”

“Making marital rape a cognizable, non-bailable offence would stop all chances of settlement between husband and wife which is possible under Section 498A,” the government argued in its submissions. The government also supported the argument of men’s rights groups that there are other laws, including the Domestic Violence Act, which provide for punishment in cases of sexual violence between husband and wife.

The government cited reports by the Law Commission and Parliamentary Standing Committee which made recommendations against criminalisation of marital rape.


The Centre’s written submissions, signed by the government’s standing counsel Monika Arora, were filed on the same day that an affidavit by the Ministry of Home Affairs was given in court. In the affidavit, the government said that it is currently carrying out a “broader consultative process including all stakeholders” before finalising its stand on the matter.

The Solicitor General of India appeared before the Delhi High Court on January 17 and January 28 and sought more time for the Centre to “finalise its stand” on the issue. But the Centre’s written submissions from January 12 indicate otherwise.

Based on the Home ministry’s affidavit, the Centre sought more time from the court on Friday.

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