Repealing Exception in Rape Law will Create New Offence, says AAP

During a hearing on marital rape in the Delhi High Court, Aam Aadmi Party said that quashing the exception in rape law, which punishes non-consensual sexual intercourse between a husband and a wife, will lead to the creation of a new offence i.e. marital rape. The bench consisting of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar rejected the statement and said that if this is the case then any law which says something is not an offence cannot be repealed, as it would lead to the conception of an offence.

It further illustrated that the constitution has empowered the High Courts and the Supreme Court in India to specifically judge the constitutionality of a law. It is not going to become a legislator and formulate new laws, in fact, its job is to consider a law’s constitutionality, said the bench.

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“We will not legislate. We will only give a declaration. The impact of which the society and state will have to deal with,” the Bench said while hearing an argument by Delhi government Additional Standing Counsel Nandita Rao.

Rao further argued on the same lines and said that if the court decides to create marital rape as an offence, then it would violate Article 20 of the Constitution. It is solely the right of the legislator. She added that there is no requirement to meddle with the laws as there is already a law to criminalize sexual abuse under domestic violence law.

“We will not legislate. We will only give a declaration. The impact of which the society and state will have to deal with,”

NGO RIT Foundation, All India Democratic Women’s Association and two marital rape victims have filed petitions seeking criminalization of marital rape.  There is an exception in the rape law of the IPC, which says that a husband cannot commit sexual intercourse with his wife of or under the age of 15. However, the apex court in October last year, increased the age limit of the wife in this case to 18 years.

In this regard, Rao said that sexual harassment comes under Section 498A of Indian Penal Code and it deals with any cruelty that the husband is putting his wife through. Rao said that if the court repeals this exception then it would give a dominating position to the wives who have suffered sexual violence by their husband over those who suffered mental abuse.

But the bench said that it cannot judge both mental and sexual abuse in the same measure as even the legislature has graded offences from verbal abuse, molestation or physical abuse to murder.

Picture credit- NDTV

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