The PIL (Public Interest Litigation) filed by advocate Anuja Kapur, seeking a direction to the Central Government to declare marital rape as a ground for divorce, was dismissed by the Delhi High Court.
The Division bench of Chief Justice DN Patel and Justice C Hari Shankar observed that the Court did not have any power to legislate under Article 226 of the Constitution.
In present, Marital rape is not a ground for divorce under the Hindu Marriage Act, 1955, the Muslim Personal Law (Shariat) Application Act, 1937 or the Special Marriage Act, 1954.
It was argued that marital rape was equal to the offense of murder, culpable homicide or rape per se. It was further added that marital rape has a long-lasting physical and psychological consequences for women.
“It denigrates the honor and dignity of a human being and reduces her to a chattel to be utilized for one’s self convenience and comfort. It reduces a woman to a corpse, living under the constant fear of hurt or injury.”
Further, it was added that since marital rape was neither a crime nor a context in cases of sexual assault, sexual abuse or aggravated assault, FIRs are not registered by the police at the insistence when a wife is a victim.
“…rather, it is being compromised (the complaint) by the Police Authorities to maintain the sanity of the marriage between the victim and the Husband.“
The petitioner added that often in cases of marital rapes, women are scared of coming forward to file any F.I.R as they do not have any legal right to get a divorce. Women who do come forward are sent back by the police by convincing them to sort out the matter with their spouse.
These were the reason why a PIL was filed. Currently, it is not considered as a ground for divorce. However, Marital rape is considered as Cruelty under section 498A IPC. But the question still remains, if marital rape should be legislated as a ground for divorce or not.