'Women denied right to call rape a rape till husbands protected by law'

New Delhi: Married women will be denied the right to call a rape a rape till the law provides protection to the husband from prosecution for a non-consensual sexual act with the wife, an amicus curiae Wednesday told the Delhi High Court.

"In my view, the exception is bad," he said.

Provisions under section 375 (rape) of the Indian Penal Code exempt sexual intercourse by a man with his wife from the offence of rape, provided the wife is above 15 years of age.

A bench of Justices Rajiv Shakdher and C Hari Shankar observed that when two people live under the same roof as husband and wife, an offence of rape is firewalled because of the exception given under the law.

"If there would have been no exception, he would have been amenable to the same punishment (as prescribed for the offence of rape) as any other person," it said

Senior advocate Raj Shekhar Rao, who is appointed as an amicus curiae to assist the court in deciding a batch of petitions seeking criminalisation of marital rape, said the only silver lining is that a woman is "better off when she is assaulted by a stranger as it is a rape", but when she is assaulted by a loved one, the law does not call it a rape.

"The more I think of it, I am unable to accept it. In my view, the exception is bad," he submitted.

On Wednesday also appointed senior advocate Rebecca John as an amicus curiae in the matter.

"In the context of rape, the court has said that it dehumanises the very existence of a woman. The question we have to ask ourselves is whether the court should sit back and look at a woman being dehumanised everyday in married life. We should have pushed your lordships to hear this matter earlier and on an expedited manner. We are guilty for it," Rao submitted.

He further said, "Everyday till the time this provision stays in the statute there is a section of society who is denied to call a rape as a rape. Mere fact that there are not so many or so many reported numbers is no reason to step into the questions of looking at a provision."

While opining that the exception given to husbands under the provision is bad, Rao said if a man forces himself upon a woman during courtship or even five minutes before their marriage, it is clearly an offence but if the same act occurs after the marriage, it is not an offence and she cannot call it a rape anymore.

During the hearing, Justice Shankar said that in these proceedings the court was not concerned whether the forcible act was a criminal offence or not, as the legislature treats it an offence but the court has to see if the act should be punished as a rape.

"It is not that the legislature does not treat it as a criminal offence but it had taken a decision that it should not be treated as rape," Justice Shankar said.