With Union Minister of State for Home Affairs Haribhai Parathibhai Chaudhary saying in the Rajya Sabha that marital rape cannot be criminalised in India as marriages are sacred in the country, women’s rights activists and jurists have started a heated debate on the issue.
To a question by Kanimozhi of the Dravida Munnetra Kazhagam in the House whether the government would bring in a Bill to amend the Indian Penal Code to remove the exemption of marital rape from the definition of rape, Mr. Chaudhary said cultural and religious values in India and society’s belief that marriage was sacred made that impossible.
The Minister cited the 172nd Report on Review of Rape Laws submitted by the Law Commission in 2000, which observed that the exemption of the spouse from rape charges should not be deleted since “that may amount to excessive interference with the marital relationship”.
Verma panel views
But the J.S. Verma Committee, set up to review rape laws in 2013 after the December 16 Delhi gang-rape, recommended that India should criminalise marital rape.
Eminent jurist Leila Seth, who was part of the three-member panel, found the Minister’s comments in Parliament strange.
“Today, you will deny woman the right to consent for sex after marriage; tomorrow you could even deny her the right to life under the pretext of defending culture,” she said adding that unfortunately, as a committee, they could only make recommendations and implementing it was in the hands of the State. “Parliament can and must change the law as per the committee’s recommendations,” she said.
Brinda Karat, Communist Party of India (Marxist) politburo member, told The Hindu that the issue of rape was premised on the concept of lack of consent between a man and a woman in a marital relation. “You cannot treat a marriage certificate as a licence for non-consensual sex,” she said. She further pointed out that though it was 10 years since the Domestic Violence Act was passed, which allowed women to seek protection from sexual violence at home, its provisions remain highly underused.
Built-in prejudice
Kamlesh Kumar Mishra, lawyer and legal consultant at Human Rights Law Network (HRLN), said: “At the HRLN, we get plenty of domestic violence complaints, including cases of sexual violence, from women. But because of the in-built prejudice in society and the judiciary, we found that there is no recognition of the possibility of rape on the wife within marriage,” he said. In February 2015, HRLN’s writ petition seeking a review of the marital rape exception clause on constitutional grounds was dismissed by the Supreme Court.
“The Indian judiciary has always treated marriage as a sacrament and has expressed apprehension about societal disorder if marital rape is made illegal,” Saurav Datta, researcher in media law and jurisprudence, said.
“In 2004, in Sakshi v. Union of India, the Supreme Court categorically said that incorporating foreign laws and precedents which treat marital rape as rape would not be suitable for India. Also, one must critique the legal rule of “restitution of conjugal rights” provided by Section 9 of the Hindu Marriage Act,” he said.
Highlighting the “hypocrisy” of the political establishment and the judiciary, Supreme Court lawyer Karuna Nundy reacted on Twitter that if a 17-year-old’s husband raped her, it was legal, but if a 17-year-old made love to her boyfriend, it was rape and then he went to adult jail.
