The Delhi High Court has shown a positive approach towards marital rape. On Tuesday (July 18), the division bench of the court, comprising Acting Chief Justice Gita Mittal and Justice C Hari Shankar sent a query to the central government asking for its opinion on the matter of making marital rape a criminal offence, according to reports.

The Court was hearing petitions filed by NGOs RIT Foundation and All India Democratic Women’s Association and two other individuals on the issue of declaring Section 375 of the Indian Penal Code (IPC) unconstitutional. The ground in this is that the stated section discriminates against married women who have been sexually assaulted.

The petition was scathing in its approach. It said: “The whimsical part under marital rape exception under Section 375 of the Indian Penal Code is the difference that is created between married and unmarried women. The interpretation of this Section brings out the disparity that a woman raped by a man is an offence but if a married woman is raped by her husband, it is not an offence simply because of the fact that the perpetrator is her husband.

“Hidden under the curtain or veil of marriage, marital rape is the most common and repugnant form of masochism in the society with complete disregard to married woman’s rights over her own body,” the petition stated.

According to the petition, this 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.”

The court was seized of the matter and agreed to hear the petition. The more moving part of the petition that may have attracted the court’s attention was the fact that most countries of the world, including the United States, the United Kingdom, South Africa and Canada have criminalised marital rape.

While asking for the Centre’s opinion, the court fixed the next hearing for August 28.

— India Legal Bureau​