Marital Rape

Syllabus: General Studies Paper 1

Context

• The Union government informed the Delhi High Court earlier this week that it was having a relook at its position spelt out over five years ago.
• In 2017, the Government had opposed the removal of the statutory exception in Section 375 of the IPC for rape committed by a husband on his wife, if she is not below 18 years of age.
• The remarks of the Union Minister for Women and Child Development, Smriti Irani, in Parliament also do not throw much light on the matter.
  • She merely said the Government was engaged in a process to introduce comprehensive amendments to criminal law, indicating perhaps that the criminalising of marital rape is unlikely to be taken up in isolation.
  • She observed that it would not be advisable to condemn every marriage as a violent one, and every man a rapist.

• One can only interpret this as a sign that the Government is quite wary of agreeing with the body of opinion that favours recognising rape as something that could happen within a marriage too.
• In 2016, the Government hadrejected the concept of marital rape, saying it “cannot be applied to the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs and the mindset of the society to treat marriage as a sacrament”.
• The Delhi government recently informed the High Court that marital rape is already covered as a crime of cruelty under section 498A of the Indian Penal Code (IPC). It also said that the courts have no power to legislate any new offence.

Laws applicable in case of Marital rape in India:

• • In India, marital rape is not defined in any law.
  • The exception in Section 375 of IPC says sexual intercourse by a man with his wife aged 15 years or above is not rape even if it is without her consent.
  • In October 2017, the Supreme Court increased it to 18 years.

Issues with Marital Rape Exception:

• Against Basic Rights of Women: This exception clause violates the women’s fundamental right to equality, freedom of speech and expression, and most of all the right to life and personal liberty.
  • It also denies the agency over their own bodies to women.

• • Offence under Section 498A of the IPC, which deals with cruelty to a married woman by her husband or his relatives.
  • The domestic violence act enables complaints against physical and sexual abuse.

• Dismal State of Judicial System: Some of the reasons for low rates of prosecution in the cases of marital rape in India include:
  • Low reporting of crimes due to societal conditioning and low legal awareness.
  • Inaccurate method of collection of National Crime Records Bureau (NCRB) data.
  • Out of court settlements due to the lengthy process of justice/lack of admissible proof.

Legal Arguments for criminalizing marital rape:

• The conventional arguments against criminalising rape within marriage — that the institution of marriage will be ruined and that it is liable to misuse — no longer hold good.
• The country has adopted a domestic violence law that enables complaints against physical and sexual abuse.
• The IPC also holds cruelty to be an offence in a domestic context.
• It is time the Union government took a categorical stand on the issue of treating marital rape as a criminal offence. Making marital rape a criminal offence is unlikely to ruin the institution of marriage any more than a complaint of domestic violence or cruelty would.

Way Forward:

• There cannot be an ambivalent position towards buying time in this context. One cannot expect the courts to delay indefinitely a ruling on the constitutionality of the existing exception in rape law.
• It is time the Union government took a categorical stand on the issue of treating marital rape as a criminal offence.
• Justice J.S. Verma committeenoted while recommending its removal, to an outdated notion of marriage that treated the wife as the husband’s property. The notion of ‘implied consent’ within marriage is also reflected in marriage laws that allow for “restitution of conjugal rights”, a remedy that either party to a marriage may avail of.
• Looking at marriage through the anachronistic lens of ‘coverture’ — the view that the wife is under the husband’s authority always — should not be allowed to override the autonomy of married women over their person.

The Hindu link

https://www.thehindu.com/opinion/editorial/sex-and-violence/article38379260.ece

Question- Legal exception to marital rape not only subdues women’s right on bodily integrity but also promotes patriarchal mindset in the society. Comment.