Can Judiciary make law on Marital Rape?

As per Constitution, it would be legal for the Supreme Court to make marital rape a crime for which Constitution has given the power under Article 138 or 142 of the Constitution. However we have to see the intent of the Constitution where it tends to separate the three functioning organs of the government under Article 50, that is, Constitution did not want Judiciary to interfere into the functions of the Legislature . Function of the Legislature is the policy making which cannot be done by judiciary. As legislature represents the morality of the society and it is his duty to make morality into law on this contemporary society issue. You also need to look at Article 14, 15, 19 and 21 of the Constitution which has been guaranteed the woman of her freedom and expression and right to life and to live with dignity. And equal treatment should have been given to the woman who has suffered rape during marriage with other rape victim as its menace are almost the same for women which instills the trauma for life. And act which dehumanise women in married life , if a law to save her from such evil is not made yet then Article 15 gives the power to government to make such special law for married women.

Therefore we are of the opinion that legislature should make a law regarding this and Judiciary should vibrantly pick this topic and send it to Parliament Committee for its consideration. It is the mandate of the Constitution to work in harmony and should respect the doctrine of separation of power.

And What can be done in formulating the law is as following- As the mandate of legislature was always to protect the marriage from the menace of divorce or other evils but in the contemporary society it is also required to protect women from the menace of sexual violence happening within the marriage. And also have to balance with the view keeping in the mind the misuse of the aforesaid law. For that, it would be proper that a *Marital rape* or *Sexual Violence during Marriage* should be made a separate section somewhat like section 376B of IPC and its evidentiary requirements should be made separately from other rape provisions and it should not be considered as the rape directly as it could be disastrous for the marriage culture in the country but the punishment should be so that it gives deterrence effect in the society. For eg. It should not get the help of section114A of Evidence Act where Burden of disproving is directly on the accused and it should be properly backed for such accusation, arrest should not be done on plain complaint And many other different provisions can be made to make it a separate , precautionary yet hard law to deter such menace.