Criminalizing marital rape would be a phenomenon which would destabilize the institution of marriage and it might also become a handy tool in the hands of women to harass their husbands said Union Government in an affidavit filed before the Delhi High court.
The Delhi High court has sought the response from the Union Government, responding to the pleas and petitions to criminalize marital rape.
The petitioners have sought declaring of Section 375 of IPC as unconstitutional on the ground that it discriminated against married women and held martial rape out of the purview of existing laws.
However the Union Government citing the misuse of section 498A (harassment caused to married woman, by her husband and in-laws) by some sections observed that State Governments should be asked to implead their response in this sensitive issue affecting conjugal relationship of millions of Indians.
The Union Government also observed that just because the western nations have criminalized the martial rape, India should follow suit. Indian cultural context is different from west, and the most of the womenfolk are economically dependent on their spouses for their livelihood, more so in rural areas.
“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 on its criminalization is taken,” it said.
"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,” the affidavit asked.
It also referred to the reports of Law Commission and Parliamentary Standing Committee on Home Affairs, saying they have examined the matter and did not recommend criminalization of marital rape.