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Marital Rape Covered Under Crime Of Cruelty In India: Delhi Government

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During the court hearing of petitions seeking to criminalise marital rape in India, the Delhi government’s counsel told the Delhi High Court that marital rape is already covered as a crime of cruelty under the Indian Penal Code.

The counsel stated before the court that married women and single women are placed differently under every single law and that the court does not have the power to legislate any new offence. Nandita Rao, the Delhi government’s lawyer said, “Marital rape is a crime of cruelty in India. Married women and unmarried women are different under every single law.”

Marital Rape Under Crime Of Cruelty:

She also said that in one of the petitions submitted before court by a marital rape survivor, the case was already registered for an offence under Section 498A of the Indian Penal Code. The section deals with cruelty to a married woman by her husband or his relatives. The cruelty means any act that can cause grave injury to the woman, drive her to suicide or can be a danger to her life, limb and health. The injuries can be mental or physical.

Justice Rajiv Shakdher and Justice C Hari Shankar were hearing the PILs filed by non-governmental organisations All India Democratic Women’s Association and RIT Foundation. A man and a woman sought to strike down the exception granted to husbands under Indian rape law.


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Senior advocate Colin Gonsalves who represented the petitioners argued in front of court that countries all over the world have criminalised marital rape and have done away with the orthodox concept that wife’s forever consent for sexual relations. The advocate also presented past judgements given by the courts of United Kingdom, Canada, United States, Nepal and European Union to prove that wife’s assumed consent should not stand a chance in the court of law.

He also objected to the notion that marital rape is a “western concept” and presented a United Nations report that showed that sexual violence between married couples is prevalent in many parts of India. Gonsalves said, “Marital rape is the biggest form of sexual violence which happens in the confines of our homes. How many times does rape take place in the institution of marriage and is never reported? This figure is not reported or analysed. He said that neighter the families nor the police came to help the marital rape survivors.

The government of India in its affidavit filed in the case has said that marital rape cannot be made criminal offence in India because it could destabilise the institution of marriage and can become a easy tool for harassing the husbands.