PIL on 'Marital Rape' dismissed in India

A Public Interest Litigation (PIL) seeking quashing of exception to section 375 of the Indian Penal Code that exempts sexual intercourse or sexual acts by a man with his own wife, she not being under 15 years age from the definition of rape, was dismissed by Kerala High Court last month on 28 October 2015.

Sitting in a Division bench of Kerala High Court, Chief Justice Ashok Bhushan and Justice A M Shafique dismissed the PIL saying that the Parliament in its wisdom has exempted marital rape from the definition of rape with regard to prevailing circumstances in the country. Therefore, the Court cannot see it as arbitrary and strike it down as violative of constitutionally guaranteed fundamental rights.

The State had contended that though there is prohibition for child marriages, being a country of such diversity, child marriages are still happening which can be curbed only by creating awareness among the public at large. It said that most of the villagers in and around India are illiterate people who are not even aware of the restrictions imposed under various statutes and they continue with the custom and practices that are being followed over a long period of time and provisions being made under various statutes to prevent child marriages cannot be treated in comparison with an offence of rape.

This public interest litigation was filed by a lawyer practising before Kerala High Court pointing out certain inconsistencies in the statutory provisions specially the punishment imposed for committing sexual intercourse with minor female. “A person, who had married a girl and had sexual intercourse with her, if she is above the age of 15, is not treated to be rape. Whereas, sexual intercourse with or without the consent of a girl aged below 18 years is considered to be rape”, the petitioner had highlighted the dichotomy in section 375. However, the Court said that the restrictions imposed by the statute for a legal marriage cannot be equated with a penal provision under the Indian Penal Code. “The drafters of Indian Penal Code were conscious about the customary practices, the religious rituals and the ground realty in such a vast country where people live in diverse situations having different cultural and social background and had consciously created an exception to the general rule in regard to rape”, the Court held and wrote in a 5-page verdict.