Marital Rape is Nevertheless a Rape

Marital rape is criminal offence in 52 countries, including the US, UK, Australia, South Africa, Canada, Denmark and France, and our neighboring Bhutan and Nepal punishable with  3 years or more of imprisonment of the guilty husband according to a UN report.

SC rejects plea to make marital rape a criminal offence.

The Supreme Court Tuesday, February 17, 2015 refused to entertain a woman’s plea to declare marital rape a criminal offence, saying it wasn’t possible to order a change in the law for one person.

A Delhi-based MNC executive had told the court that her husband repeatedly resorted to sexual violence but she was helpless as marital rape was not a crime in India.

“You are espousing a personal cause and not a public cause…This is an individual case,” a bench of justice AR Dave and justice R Banumathi said, refusing to take up her plea.  The woman had challenged the validity of an exception to Section 375 of the IPC that says sexual intercourse by a man with his wife, who is 15 or above, is not rape even if it is without consent.

The provision, the woman said, violated her fundamental right to life and liberty

As the bench was not inclined to entertain the petition, Colin Gonsalves, who represented the woman, chose to withdraw it. “We would move the court again on the issue….may be through a women’s organisation,” the senior advocate told HT.

The law commission in its report to the government in March 2000 recommended that forced sexual intercourse by a husband be treated as an offence just like any physical violence by a man against his wife.

Justice JS Verma committee that reviewed rape laws after the December 16, 2012 gang rape of a para-medical student in Delhi had also given a similar suggestion.

But the government has chosen not to change the law that is apparently based on patriarchal social norms.

According to UN Women’s 2011 report, marital rape is a criminal offence in about 52 countries, including the United States, the United Kingdom, Canada, France and neighbouring Bhutan. The report said 127 countries did not explicitly criminalise rape within marriage.

The petitioner alleged that she was not only subjected to dowry harassment, but also brutally raped by the husband who pushed torch lights into her, causing grievous injuries.

 Government’s refusal to criminalise marital rape has been termed as “regressive” by several women rights activists but experts supporting the Centre’s stand feel there is no need to tinker with the law as it might be “misused” by some to settle scores.

The issue, which did not garner favour from the Supreme Court, has triggered a fresh debate in the wake of Minister of State for Home Haribhai Parathibhai Chaudhary’s statement in Parliament that the concept of marital rape cannot be applied in India where marriage is considered as a “sacrament”.

Parliament is being regressive about it. Even Justice J S Verma Committee had recommended criminalising marital rape. India is ready but Parliament is not,” senior advocate Rebecca John said. Her view was shared by activists Ranjana Kumari and Vrinda Grover who vouched for a law protecting married women from forced sex with their spouse.

They said lawmakers do not want to give women their right against exploitation, even at the hands of their husbands.

However, this view did not find favour with some jurists who said criminalisation of marital rape will be “dangerous” in today’s scenario where instances of false implications of husband and in-laws by women are in abundance.

Two retired judges — S N Dhingra and R S Sodhi — of the  Delhi High Court said it will trigger misuse of law by women to settle scores.

Differing with them and supporting the women activists, senior advocate Colin Gonsalves, who took up the issue in the apex court, alleged the government was headed by “men with anti-women thinking”.

“Our government is conservative, anti-social and backward looking. It is headed by men with anti-women thinking,” he alleged, and asked “when there is law to protect women against domestic violence, then why can’t there be one for marital rape?”

According to a UN report — ‘The 2011 Progress of the World’s Women: In Pursuit of Justice report’ — marital rape is an offence in 52 countries, including the US, Australia, South Africa, Canada, Denmark and France.

Kumari, Chairperson of Centre for Social Research, strongly opposed the mindset of people anticipating misuse of such a provision, saying “fear of misuse of law does not mean women suffer”.

“Politicians need to recognise these issues as these are a global reality. We need to have a proper law,” she said.
According to activist-lawyer Grover, it is the consent of a woman which matters and not her relationship with the perpetrator.

“Indian society, like any other society, is witnessing marital rapes and it needs to be made punishable. In such cases, consent of a woman is of utmost importance and relation between a perpetrator and the woman becomes irrelevant,” she said.

However, Justice Dhingra, said it is “dangerous” to make marital rape an offence and “if it is really happening with a woman, she needs to speak up timely and not live with it for years and then complain, because in that situation it is considered an after thought.

“How will it be proved that the woman’s consent was involved or not?” he asked.

Echoing his opinion, Justice Sodhi said it is tough to prove that allegations made by a woman against her husband are genuine.

“It is a word of mouth. How do you prove the charge of rape? It can be manipulated easily. I think exceedingly private matters of the bedroom should not be brought out in the open. Take a divorce if such a situation arises. Stop criminalising the world around,” Justice Sodhi said.

Anguished over Parliament’s “un-preparedness” to deal with marital rapes in the country and apprehension of false implication by women, John asked, “Why are issues pertaining to only women seen as vulnerable to misuse?”

“Why women should not get their due? Our system should be capable of dealing with misuse. If it cannot, it’s a systemic failure,” she said.

As per the present law, section 375 of the IPC, which defines rape, provides an exception to marital rape stating that sexual intercourse by a man with his wife not being under 15 years of age, is not rape.

Rajya Sabha MP Kanimozhi had asked the Home Ministry whether the government will bring a bill to amend the Indian Penal Code to remove the exception of marital rape from the definition of rape.

She had also said that according to United Nations Population Fund, 75 per cent of married women in India were subjected to marital rape and asked whether government has taken cognisance of the fact.

Justice J S Verma Committee, set up in the aftermath of the December 16, 2012 Delhi gangrape incident to bring changes in the criminal law, had recommended that the exception for marital rape be removed from the IPC.

“The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape,” the Verma Committee had said.

However, government did not accept the recommendation.

(Courtesy June 8, 2015 in Financial Express(,  News Item on: Refusal to criminalize marital rape: Activists, experts differ).

 

 My Conclusion:       Whatever The learned higher Judiciary, Parliamentarians and Seasoned Politicians or Parliamentarians( our law makers) say, I strongly opine that “Marital Rape is  Nonetheless a Rape and it is so not withstanding the above lawmakers opinion of marriage being a sacrament and its sanctity should be maintained at all costs even though the husband brutally commits the offence of the rape against   the person of his wife without her consent thus physically and mentally violating her dignity, self respect , pride and violence on her body

 

                                   In my view permitting husband to commit rape is not sanctimonious but a sacrilege and blot on India being the largest democracy in the world. It is against the letter and spirit of the Indian Constitution such as dignity and self respect, Right to Equality-Article 14) and Right to Life and Personal Liberty. As a staunch feminist I strongly support Marital rape being made a punishable  criminal offence with imprisonment of at least 5 years or more and in my opinion scope for its misuse by women is very less and very rare and it is highly unjustified not to bring such a women protection law on the statute book immediatly on the flimsiest pretext of its misuse either in the domestic violence law or otherwise so as to add to women empowerment in India and make India a progressive democracy and not a regressive democracy.

   

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