A division bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar was told by the Delhi government that marital rape is an offence under section 498A of Indian Penal Code, which deals with husband subjecting wife to cruelty.
Section 498A of IPC deals with cruelty to a married woman by her husband or his relatives where cruelty means any wilful conduct which is of such a nature which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman.
Delhi Government Additional Standing Counsel Nandita Rao said non criminalisation of marital rape is "not a violation" of Article 21 (protection of life and personal liberty) of Constitution as a wife is not compelled to live with a sexual abusive husband under personal law, Rao submitted.
The government said that creation of marital rape as an offence by court would be violative of Article 20 of the Constitution, as it was the prerogative of the legislative.
The submission of Delhi government came on bunch of pleas seeking to make marital rape a criminal offence.
Section 375 that defines rape also says sexual intercourse by a man with his wife aged 18 years or above is not rape even if it is without her consent. Section 376B deals with sexual intercourse by man with his wife during separation.
The Centre had told the high court that criminalising marital rape "may destabilise the institution of marriage" and would become an easy tool for harassing husbands.
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