On Monday, the Supreme Court in the case Prabhakar Deshpande v. The Union of India & Ors, the bench comprising of Chief Justice U.U. Lalit and Justice Ravindra Bhat observed and has dismissed a Public Interest Litigation praying for the declaration of marital rape as a criminal offence on the ground that the issue was already taken under consideration in a separately instituted proceeding.
In the present case, the PIL was dismissed by the bench while noting that the petitions arising from the split verdict given by the Delhi High Court on the issue of Marital Rape are listed on 12th September. Hence, on the issue a PIL was unnecessary.
However, the CJI stated that why should we multiply? You’re filing a PIL. You are going by the fact that it is a matter that the court must be taking note of. Thus, if the court is aware of the matter, your idea vanishes…Every person need not be heard…In view of the fact that the petitions are under consideration in separately instituted proceedings, no reason to entertain this petition. Hence, Dismissed.
Further, the petition traced the history of marital rape and stated that while until 1970s most nations granted husband right to have sex with his wife whenever he so desired, anti-rape movements, resulted in more than 150 nations to criminalised the marital rape. Therefore, India, was one of the 36 nations out of 200 nations of the world where marital rape was still legal.
The present petition while throwing light on marital rape jurisprudence in India states that Kerala High Court on 6th August 2021, ruled that marital rape can be ground for divorce. However, it was ruled by the Chhattisgarh High Court that forced sex upon wife by husband is not rape. It was submitted that under the 1st Explanation of Sexual Assault in Section 3 of the Domestic Violence Act, 2005 includes any conduct which demeans, embarrasses or effects a woman’s dignity and for this the women can seek separation from her husband. Thus, as per the petition, this was not sufficient as a married woman deserves a legal protection to demand for an equal punishment for the offence committed against her. The petition filled highlighted that while consummation of marriage of minors is illegal and possibly it is a rape as minors’ consent is non-est in the eye of law, the same question of consent of a women was a nullity when she was violated after her marriage when she is a major.
It is stated in the petition that the Justice J.S. Verma Committee had recommend for the Criminalisation of marital rape. For a nation that makes brouhaha about rape, the lack of criminalisation of marital rape and the same makes mockery of justice. Inn today’s perspective, the issue of marital rape may be examined, with the provisions of appropriate safe guards and punishment.
Accordingly, the petitioner in the plea had prayed for the court to issue Direction/Writ or Order upon the Government for taking effective steps to stop marital rape by declaring it a Criminal Offence. Also, the court requested for the government to spread awareness about equality of women in all walks of life and to respect their right to personal liberty.