High Court’s observation: In cases of marital rape, the guilty should be punished prima facie

The High Court said that in cases of marital rape, the guilty should be punished prima facie, there should be no doubt about it. There can be no compromise on women’s right to say no to sexual autonomy, bodily integrity. The court made this observation during the hearing of a petition seeking to criminalize marital rape in India.

During the hearing, the bench disagreed with the contention of the petitioner that courts like UK, US, Nepal etc. have struck down such provision. The bench said that we cannot set aside any provision merely because it has been struck down by a court of that country in other countries and jurisdictions. A bench of Justices C Hari Shankar and Rajiv Shakdher said the question is not whether the accused should be punished in cases of marital rape, but whether the person should be convicted of rape in such a situation.

The bench referred to the exception of section 375 IPC which exempts sexual relations between a husband and wife from the offense of rape. The court observed that there is a qualitative difference between the cases in which the parties are married and those where the marriage has not taken place.

The bench said if the legislature is of the view that where the parties are married, it should not be classified as rape, then it should not be classified as rape.

Justice C Hari Shankar said the present issue is whether the exception under section 375 should be done away with. There is no concept of marital rape in India. The legislature has created a situation where the parties are married, except in section 375. We will have to see whether a case is made out to do away with this exception. Also the question of whether the provision should be considered unconstitutional or not. There are already established principles of the Supreme Court in this regard.

Instead of referring to the earlier judgments of UK, US and various other courts, we should state the ideal conditions in which the provision is to be struck down, the bench said. The bench held irrelevant the submissions made by the petitioners to the earlier decisions of the UK, US, Nepal and various other courts. The bench said that it may have some persuasive value but we cannot set aside any provision merely because it has been struck down by a court of that country in other countries and jurisdictions. The High Court has said that we have our own jurisprudence, our own legal system, our own constitution and well-established principles.

The High Court said that in cases of marital rape, the guilty should be punished prima facie, there should be no doubt about it. There can be no compromise on women’s right to say no to sexual autonomy, bodily integrity. The court made this observation during the hearing of a petition seeking to criminalize marital rape in India.

During the hearing, the bench disagreed with the contention of the petitioner that courts like UK, US, Nepal etc. have struck down such provision. The bench said that we cannot set aside any provision merely because it has been struck down by a court of that country in other countries and jurisdictions. A bench of Justices C Hari Shankar and Rajiv Shakdher said the question is not whether the accused should be punished in cases of marital rape, but whether the person should be convicted of rape in such a situation.

The bench referred to the exception of section 375 IPC which exempts sexual relations between a husband and wife from the offense of rape. The court observed that there is a qualitative difference between the cases in which the parties are married and those where the marriage has not taken place.

The bench said if the legislature is of the view that where the parties are married, it should not be classified as rape, then it should not be classified as rape.

Justice C Hari Shankar said the present issue is whether the exception under section 375 should be done away with. There is no concept of marital rape in India. The legislature has created a situation where the parties are married, except in section 375. We will have to see whether a case is made out to do away with this exception. Also the question of whether the provision should be considered unconstitutional or not. There are already established principles of the Supreme Court in this regard.

Instead of referring to the earlier judgments of UK, US and various other courts, we should state the ideal conditions in which the provision is to be struck down, the bench said. The bench held irrelevant the submissions made by the petitioners to the earlier decisions of the UK, US, Nepal and various other courts. The bench said that it may have some persuasive value but we cannot set aside any provision merely because it has been struck down by a court of that country in other countries and jurisdictions. The High Court has said that we have our own jurisprudence, our own legal system, our own constitution and well-established principles.