The divided verdict of the Delhi High Court on Wednesday on petitions related to marital rape is disappointing for those who are fighting to end the legal protection given to those who rape their wife under Section 375. In the decision of the two-judge bench, one judge termed this legal protection as unconstitutional and termed it as a violation of Articles 14, 15, 19 (1) and 21 of the Constitution, but the second judge found it completely justified. According to this provision of section 375, if a person enters into a sexual relationship with his wife without her consent and the age of the wife is not less than 18 years, then it will not be considered an offense by law.
Naturally, the advocates of gender equality are urging to abolish this legal provision and make the marriage relationship more just. This struggle is going on and on not only in India but in many other countries. Britain has already declared marital rape a crime in 1991. Many other countries have also been exempted from this legal provision. Keeping this intact, India actually stands in the category of countries like Bangladesh, Nigeria, Iran and Saudi Arabia. Interestingly, the central government has not yet taken a clear stand against this legal provision.
In an affidavit filed in 2017, the government had opposed its removal, saying making marital rape a legal offense would disintegrate the institution of marriage and make it a tool to harass husbands. However, later the government told the court that it was reconsidering its stand. Even after this, he told the court that the issue should not be seen from the point of view of constitutional validity of a legal provision as it would have far-reaching legal and social implications for the country. The government kept asking for more time from the court to decide its stand, on which the court had to say that if you want, we postpone the hearing on this matter indefinitely, then it will not happen.
It should be noted that even during the hearing of the Supreme Court on the petition to not consider extramarital affairs as a legal offense, the stand of the Central Government was that it would endanger the sanctity of the institution of marriage. In view of such stand of the government, it is clear that no meaningful initiative can be expected from the legislature and executive on the issue of marital rape. In such a situation, the judiciary remains the last hope of the society in terms of gender justice.