While the Union government told the Delhi High Court, which is hearing a batch of petitions on marital rape, that a consultative process was underway to bring amendments to criminal laws, women’s rights activists say consensus building on the issue is only a delaying tactic and that their hopes are pegged on the court.
The Delhi High Court is hearing multiple petitions challenging the exception to Section 375 of the Indian Penal Code, which exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age — also known as the marital rape exception. The petitioners include the RIT foundation, All India Democratic Women’s Association (AIDWA) and a survivor of marital rape.
On Friday, in its affidavit in the court, the Union government said that it “is in the process of making comprehensive amendments in criminal laws” and that it has invited suggestions “from Chief Ministers of all State Governments and also from Union Territories, Chief Justice of India, Chief Justices of all High Courts, Judicial Academies, National Law Universities, Bar Council of India, Bar Council of all High Courts and Members of both the Houses of Parliament”, adding that petitioners are also at liberty to give their suggestions.
“Who is the government consulting? Women’s rights organisations have not been approached for their views. Many laws for women have been brought because of the pressure from women’s movement in India such as the 498 A [of the Indian Penal Code which pertains to dowry harassment] and the Dowry Prohibition Act, 1961,” asks Mariam Dhawale, General Secretary, AIDWA.
“A consultative process for the government is just beating around the bush. Look at the Bill seeking 33% reservation for women in Parliament which has been hanging for 25 years under the garb of consensus while there are so many laws that are simply pushed through even when there have been the widest opposition. That is why we have to go to courts and appeal that marital rape be made a crime,” adds Ms. Dhawale.
At least two big committees in the past decade have recommended criminalising marital rape, but successive governments have failed to pay heed resulting in the matter being brought before the Delhi High Court in 2015.
Verma panel proposals
A week after the gangrape of a paramedic student on December 16, 2012 that led to nationwide protests, the then UPA government formed a panel led by Justice (Retd.) J.S. Verma to propose amendments to the Criminal Law and to provide for quicker trial and enhanced punishments in sexual assaults against women. The Commission received 80,000 suggestions and finalised its 644- page report, considered to be a historic document, within 29 days and recommended sweeping changes. While some of its recommendations helped shape the Criminal Law (Amendment) Act passed in 2013, its most radical suggestions including on marital rape were swept under the carpet.
The Verma panel proposed that “the exception for marital rape be removed” and the law must “specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”.
Despite assurances from the then Finance Minister P. Chidambaram that all recommendations of the J.S. Verma panel had been accepted, the Act, first promulgated as an Ordinance, didn’t mention striking down of the marital rape exception. A Parliamentary Standing Committee on Home Affairs headed by Venkaiah Naidu too said, “the entire family system will be under great stress” should marital rape be criminalised.
Ten months before the Justice Verma panel was formed, the government had tasked a 14-member High Level Committee, headed by academic-turned-activist Pam Rajput, in February 2012 to make a comprehensive study on the status of women since 1989 and give recommendations on necessary policy actions. This committee in its report on June 1, 2015, also suggested that “marital rape should be made an offence”.
“We had a large consultation, which included a large number of women’s organisations, universities, advocates and there was unanimity that marital rape should be criminalised,” Professor Rajput told The Hindu .
But the government has steadfastly rejected the suggestion.
In March, 2016, while responding to a question in Rajya Sabha, then Women and Child Development Minister Maneka Gandhi took umbrage at the 2013 Parliamentary panel report and added that if there were a high volume of complaints on marital rape the Ministry could consider criminalising marital rape.
When the Delhi High Court was hearing the three petitions back in August 2017, the government in its affidavit submitted that it had to be ensured that marital rape doesn't become a phenomenon that destabilises the institution of marriage and an easy tool for harassing husbands. It added, “What may appear to be marital rape to an individual wife, it may not appear so to others.”
“There will always be patriarchal forces that will oppose making marital rape a crime and take protection of cultural norms and sanctity of institution of marriage which will delay the whole process. Therefore, the judgment of the court is going to be very important — the judiciary is our best hope,” says Professor Rajput said.