'Must Not Wait for Parliament': Amicus Curiae to Delhi HC in Marital Rape Case

India is one of the 36 countries in the world where marital rape is not criminalised.

(Photo: Kamran Akhtar/The Quint)

"If the object was saving the institution, then the wife would not have been able to prosecute her husband for anything," said amicus curiae Rajshekhar Rao, concluding his arguments before the Delhi High Court on Tuesday, 18 January, in connection with the 'marital rape exception' case.

"To say that just because lawmakers have enacted and Parliament will perhaps take care in future, I don't think that should be the course. Your lordship should interpret this in light of Art 14 and 21," Rao told the bench of Justice Rajiv Shakdher and Justice C Hari Shankar.

Another amicus curiae, Senior Advocate Rebecca John will commence arguments on Wednesday, 19 January.

What's the Case?

Section 375 of the IPC defines the offence of rape. While the section has been amended over the years to remove archaic concepts, emphasise on the importance of consent, and cover all relevant sexual acts, it still retains an exception for non-consensual sex by a husband with his wife.

This 'marital rape exception' has been challenged in the Delhi High Court, on the basis that it violates the fundamental rights of married women, including Article 14 (right to equal treatment by law) and Article 21 (right to life and personal liberty) of the Constitution.

'Constitutional Courts Must Not Hesitate'

Rao read that if there is violation of Fundamental Rights, then the constitutional courts must not display an iota of doubt in striking down such provision of law. Referring to the landmark Navtej Singh Johar judgment, Rao read:

"...constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated."

He argued that the exception to marital rape makes consent irrelevant.

"An act when done to any woman is rape, but when to a wife, is not rape. And that is in question here."

Responding to Justice Hari Shankar's earlier query on whether the law should be looked only from a woman's point of view, Rao said:

"The act recognises only the consent of the woman. The statute is women-centric, it looks at what the women don't want. From the wife's Pav, it recognises that the women don't want, but does not give her the provisions. If you put yourself in a woman's shoes, what she has undergone is rape."