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The Delhi High Court, on 09.07.2019, disposed of a Public Interest Litigation (PIL) pleading to place appropriate guidelines for registering an FIR in marital rape cases and to frame appropriate laws to subject it as a ground of divorce.

A bench. headed by Chief Justice D.N. Patel and Justice C Hari Shankar told the petitioner, Anuja Kapur, that the court is more concerned in the interpretation of the law rather than drafting. The responsibility of drafting is with the legislature.

Currently, marital rape is not considered as an criminal offence under section 376 of the IPC. 376 which recognizes rape, has a clause which states sexual intercourse by a man with his own wife to not to be considered as rape. However courts in their judgements have held the importance of terming marital rape as an criminal offence.

In a recent judgement made by the Gujarat High Court in Nimesh hai Bharatbhai Desai vs State Of Gujarat, the court observed that making wife rape illegal will remove the destructive attitudes that promote marital rape.

Anuja, who is the founder an NGO “Nirbhaya Ek Shakti” in her plea said since marital rape is not a crime, an FIR does not get registered by the wife against her husband.

In her plea she demanded apporpriate guidelines for registering a case on marital rape

The UN Population Fund in their report stated that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten , raped or forced to provide sex. Another report from National Family Health Survey also says that nine out of every 100 men across India agreed that a husband is justified in beating his wife if she refused to have sex with him.

Can The Court Make Laws 

Former Chief Justice Of India, Justice HS Kapadia, in his speech said “In many PILs, the courts freely decree rules of conduct for government and public authorities which are akin to legislation. Such exercises have little judicial function in them. Its justification is that the other branches of government have failed or are indifferent to the solution of the problem. In such matters, I am of the opinion that the courts should be circumspect in understanding the thin line between law and governance…” 

There have been instances when the court has legislated laws, in  Vishaka v. State of Rajasthan (1997)  the Supreme Court actually laid down the law pertaining to sexual discrimination at workplaces in the absence of it governing the same. Over the times, the debates have only increased regarding up to when the court could legislate laws and when not.

– India Legal Bureau


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