Note4Students

Marital Rape has been in news recently because Modi government has filed an affidavit in the Supreme Court arguing against criminalizing marital rape. A number of op-eds have been written over this issue in past few Months. Also, this topic is linked to GS 1 Social issues and GS 2 Vulnerable sections. Therefore, CD considers this topic important for mains 2017.

Context

The Narendra Modi government has filed an affidavit in the Supreme Court arguing against criminalizing marital rape. According to Government Doing so would “destabilize the institution of marriage, apart from being an easy tool for harassing husbands

 

What is marital rape?

Marital rape (also known as spousal rape and rape in marriage) is non-consensual sex in which the perpetrator is the victim’s spouse. It is a form of partner rape, Domestic violence and sexual violence.

Current status of marital rape in India

1. Our legal system doesn’t provide any concrete protection to the victims of marital rape. Under Hindu marriage act, 1955 one of the “conjugal duties” of the wife is to provide sexual satisfaction to her husband, a very archaic thought congruent to the thoughts of a patriarchal society. Section 375 of the Indian Penal Code(IPC) considers forced sex in marriages as a crime only when the wife is below 15 or the couple is legally separated. Thus, marital rape is not a criminal offense under the IPC.
2. Marital rape victims have to take recourse to the Protection of Women from Domestic Violence Act 2005(PWDVA).The PWDVA, which came into force in 2006, outlaws marital rape. However, it offers only a civil remedy for the offence.

 

Arguments in favour of criminalizing marital rape

1. Sheer Number: Out of the total number of rapes reported to NFHS (though it is an informal survey whose premise was to provide anonymity), 97.7% rapes were committed by the people known to the victim, out of which marital rapes accounts for 2/3rd.Thus the sheer  intensity  of marital rape suggests that it should be criminalized.
2. Mental Trauma: There have been many heartrending stories of women raped every night, even during pregnancy and child birth. It is a physical as well as mental trauma because the perpetrator is known to the person, often very close.
3. Violation of Fundamental right: Marital rape is considered as the violation of Fundamental Right guaranteed under Article 14 of the Indian constitution which guarantees the equal protection of laws to all persons.
4. By depriving married women of an effective penal remedy against forced sexual intercourse, it violates their right to privacy and bodily integrity, aspects of the right to life and personal liberty under Article 21, by differentiating them from unmarried women.
5. Marital privacy – which justifies laws such as the marital rape exception – is a fundamental denial of society’s commitment to treating all persons with equal concern and respect.
6. After making high pitch for the government flagship Beti Bachao beti padao, we want our ‘Beti’ to not have a right on her own body. If marital rape has been committed, wife is a rape survivor and she has same rights like any other rape survivor.
7. International Example: Many countries have made it a crime for a husband to force his wife to have sex in recent years. Malaysia changed its laws to that effect in 2007; Turkey in 2005; and Bolivia in 2013. The United States began criminalizing marital rape in 1970s and most European countries in the 1990s. The United Nations has also recommended India to criminalize marital rape. Though we try to emulate US in many areas to prove ourselves as progressive, doesn’t this law provide the opportunity for the same
8.  Even the Law Commission’s report (2000) and Justice Verma panel’s (2013) recommended to do away with the exemption granted to marital rape in the laws.

 

Arguments against Criminalization ?

1. Subjective: It is very subjective and intricate to determine whether consent was acquired or not. Sometimes women use denying intercourse even if she is comfortable with, as a tool for punishment or getting their demands fulfilled.
2.  Prone to Misuse: If marital rape is criminalized without adequate safeguards it could be misused like the current dowry law by the dissatisfied wives to harass and   torture their Husbands.
3. Marriage is the holy institution and application of such laws will wither away its basic fabric as it will lead the investigation to the intricate relationship between the couple.
4. Burden on Judiciary: Will increase the burden of judiciary which otherwise may serve other more important causes
5. Potentially miniscule Law: This law will more likely to be a passive and potentially minuscule law. Since less educated and rural women are not likely to use it and the other strata of women can be said to empowered enough to say no for this kind of acts of their rapist husband’s. 
6. Cannot be applied to India: The concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.
7. U.S.A did criminalize marital rapes in 1970’s, most European countries have done so, countries such as Bolivia and Turkey, being the latest entrants to this list. It is a weak argument that just because so and so country have done it, so should we. Going by this logic, Netherlands has legalized prostitution and marijuana, then, so should we.

 

Conclusion

1. Sexual consent is the right of every woman, married or unmarried, as much as of men, and nonconsensual sex should be treated exactly the same, irrespective of the relationship of the perpetrator to the victim. Adequate safeguards however need to be included in the law which limits the opportunities for misusing this law like the dowry law. Just because the law can be misused does not mean that we should evade from our responsibility. However just legal reform is not sufficient as along with legal reform we also need social reform so that this menace could be eradicated from our society.  It is the progressive social consciousness which is need of the hour.