By Akshat Vachher
The Supreme Court of India has clarified that sexual intercourse between a married couple cannot be considered marital rape as long as the wife is at least 15 years of age and is living with her husband. The Union Government, in its submission to the Delhi High Court, has stated that marital rape will disrupt the institution of marriage. Even the Parliamentary Committee on Home Affairs, in its latest report, has claimed that marital rape cannot be considered as rape. The report reiterates the Government?s belief that the entire family system will be shaken if marital rape is considered to be a criminal act. The present Minister of Women and Child Development, Maneka Gandhi, has claimed that India has to deal with various other issues such as illiteracy, poverty, social customs, values, and beliefs. Even the former UPA (United Progressive Alliance) Government turned a deaf ear to the issue of marital rape. However, the acceptability of the idea of marital rape is not just an Indian practice. This idea has its origin in the common law principle of marriage which states that a married woman is always under the protection of her husband and his authority.
Compelling reasons?
Apart from this, the Centre has also mentioned other reasons to prevent criminalisation of marital rape,?inter alia,?misuse of the law by women. This narrative claims that there have been several occasions in which women have misused laws on domestic violence to harass men, thus, suggesting that the law on marital rape will also be used as a tool to harass men.
Additionally, it will be difficult to establish the act of marital rape. This is because the offence of ‘rape’, as defined under Section 375 of the Indian Penal Code, does not recognise ‘marital rape’ as a separate and distinct offence. Hence, what may constitute as marital rape for the wife may not be deemed so by others. This could be indicative of the Centre taking a stand against the declaration by Justice J.S. Verma Committee which succinctly stated that the institution of marriage could not be a defence for rape.
The other side
The proponents of the idea of criminalisation of marital rape also?find?ample support.?According to the National Family Health Survey 2005-06, almost one in ten married women in the age bracket of 15-49 years reported having been raped by their husbands. Therefore, the Centre?s argument that the law may be unfairly used by women does not hold ground. And even if a law has chances of being misused, it does not imply that the law should not exist. If this logic were true, then there would be no laws.
It should also be noted that non-criminalisation of marital rape is contradictory to the Indian Constitution. The Constitution guarantees basic rights, justice, and equality before the law to each and everyone without discrimination. If marital rape is not criminalised, then how can women be guaranteed the promises made by the Constitution? Rape causes mental harm and mental well-being is the difference between living a life and living a nightmare.
Reshaping beliefs
In a society, laws are shaped by customs, and conversely, customs are shaped by laws. If laws that recognise marital rape as a crime are passed, then it is highly likely that customs shaping ideas like the objectification of women and women being the property of their husbands will also change. It could be recalled that the practice of Sati was also a custom. But after revisiting, repealing and amending?certain laws, the custom of widow-burning slowly phased out. Finally, the argument that laws on marital rape will be difficult to formulate on account of issues in procuring reliable evidence and defining marital rape is again a weak one. India can most certainly look to other jurisdictions and learn from 72 progressive countries that have criminalized marital rape.
Lastly, criminalising marital rape can also lead to better marriages. By not recognising and providing adequate redressal to a crime like marital rape, marriages can break down, or worse, become toxic. The society, as a whole, needs to think what is better: maintaining status quo and staying regressive, or, progressing towards justice for all.
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