New Delhi: A PIL was today moved in the Delhi High Court raising the debatable issue of 'marital rape' by challenging the provision in the penal law which does not consider as rape, the sexual intercourse with a wife who is not a major.
However, the High Court said, before going into the "serious issue" it would like to examine the locus standi of the NGO which has filed the petition highlighting the exception in Section 375 of the IPC which states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
The NGO, Rit Foundation, submitted that the exception in section 375 was brought by way of the Criminal Law Amendment Act of 2013, which was enacted after the horrific gang rape case of December 16, 2012.
"You cannot file a PIL in vacuum. What is the aim and objective of your NGO. What is the locus of this petition. This is a serious issue. File better affidavit," a bench of Chief Justice G Rohini and Justice R S Endlaw said while posting the matter for February 18.
The NGO, in its petition filed through advocate Lohitaksha Shukla, claimed that the exception to Section 375 of the IPC was to the extent that it grants immunity to a husband by raping his own wife, who is above age of 15 years, was unconstitutional.
It submitted that the exception was "unconstitutional and violative of the Right to Equality guaranteed to married women under Article 14 of the Constitution as it decriminalises rape when the perpetrator is the lawfully wedded husband of the victim."
It said that even though the law made a distinction between married and unmarried woman in this case, the basis of distinction does not have any rational nexus with the object sought to be achieved by the law, which is to protect women from sexual assault.
The petition also stated that marital rape has been criminalised in almost all major common law jurisdictions throughout the world, including in United States, United Kingdom, South Africa and Canada.
"The criminalisation of marital rape was also recommended by JS Verma Committee in 2013. However, the government has desisted from paying any attention," it said.