In an affidavit filed by the Centre, it said that there can be no lasting evidence in case of sexual acts between a man and his own wife.
The affidavit filed by the Centre before a division bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar, said: “It has to be ensured adequately that marital rape does not become a phenomenon which may destabilise the institution of marriage apart from being an easy tool for harassing the husbands.”
“If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife,” it added.
The Centre said marital rape is not defined in any statue/law, while rape is defined under Section 375 of the Indian Penal Code, defining marital rape would call for a broad-based consensus of the society.
“What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non rape needs to be defined precisely before a view in its criminalisation is taken,” the affidavit stated.
The fact that other countries, mostly Western, have criminalised marital rape does not necessarily mean India should also follow them blindly, the Centre said.
The government added that it cannot criminalise marital rape because India has its own unique problems due to illiteracy, lack of financial empowerment of majority of females, mindset of the society, vast diversity in the cultures of states which implement criminal law, and poverty etc.
The Centre has also said that it is necessary to implead the state governments in the matter to know the opinion of these states to avoid any complications at a later stage.
Even though Justice J.S. Verma Committee in its report titled “Amendment to Criminal Law” recommended that the exception to marital rape be removed, it is also pointed out that it is also important that the legal prohibition on marital rape is accompanied by changes in the attitude of the prosecutors, police officers and those in the society generally, the affidavit stated.
Merely deleting the exception which provides protection to husbands from prosecution for the offence of rape, may not stop marital rape and moral and social awareness plays a vital role in stopping such an act, the Centre added.
The Centre’s response came on petitions filed by NGO RIT Foundation, All India Democratic Women’s Association and a marital rape victim, challenging the exception to rape under Section 375 and Section 376B as unconstitutional.
The pleas challenge the Indian Penal Code’s Section 375, saying it does not consider sexual intercourse of a man with his wife as rape. Section 375, which defines “rape”, also contains the exception provision which states that the rape law would not apply to assault or sexual intercourse by a husband with his wife over 15 years of age. Section 376B deals with sexual intercourse by a man with his wife during separation.
A men’s right group — Men Welfare Trust — has also approached the High Court contending that the existing laws were “very much capable of dealing with the cases of sexual abuse of women” and there is no need to either bring a fresh law to deal with it nor is there a requirement to withdraw the protection granted to husbands under Section 375 of the IPC.
“The sexual abuse in a domestic relationship should not be termed as rape,” the men’s plea has said.