A division bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar hearing a PIL against the penal code provision that protects husbands from being tried for the rape of their wives, also asked how many countries have made marital rape an offence.
"It's (marital rape) a very serious issues... Is it an offence in the world? In how many countries is marital rape an offence?," the bench said. It added: "Marital rape is part of the culture. See, how difficult is it for women to register a rape case."
The court's remark came while hearing a PIL filed by NGO RIT Foundation, challenging Indian Penal Code's Section 375 saying it does not consider sexual intercourse of a man with his wife as rape.
The Union government had earlier defended the provision saying "exception 2 (to Section 375 IPC) deals exclusively with private affairs of husband-wife based on traditional social structure and hence can't be said to be unconstitutional and in violation of Articles 14 to 21 of the Constitution".
Section 375, which defines "rape" also contains the exception provision which states that the rape law would not apply to assault or sexual intercourse by a husband on his wife who is above 15 years.
The PIL has sought to declare the provision unconstitutional as it discriminates against married women sexually assaulted by their own husbands.
The plea has said that the law as it stands today amounts to a state-sanctioned license granted to the husband to violate the sexual autonomy of his lawfully wedded wife and is therefore, a violation of the Right to Privacy guaranteed to the wife under Article 21 of the Constitution.
"The exception to section 375 arbitrarily discriminates between women as it keeps the age of consent at 15 years for women who are in a wedlock whereas the same is 18 years in case of any other woman," it has stated.
The court posted the matter for July 18.
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