Prime Minister Narendra Modi led BJP government has held that what “may appear to be marital rape” to a wife “may not appear so to others.” The central government has stated so in an affidavit filed before the Delhi High Court. Submitted before the court on Monday, the government states that by classifying marital rape as a crime “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.
Seeking clarity on the definition of marital rape, the Center in the affidavit has demanded:
“As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken.”
The central government had filed the affidavit in response to a petition filed by RIT Foundation which seeks to criminalize marital rape. To bolster its argument, the government has cited the misuse of anti-dowry provision in Section 498A of the IPC as an example of how laws can be tweaked “for harassing the husbands”.
The government also furnished a report of the Law Commission and Parliamentary Standing Committee which is against criminalizing marital rape.
It is to be noted that the Center has consistently taken a stand against criminalizing marital rape. On August 9, the Center had defend a provision of criminal law, which holds that sexual intercourse by a man with his wife aged 15 years or above was not rape even if it was without her consent.
This provision is laid out under Section 375 of the IPC that deals specifically with rape. No other statute or law recognises marital rape, and victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005.
The Center’s affidavit further urges the states to come up and implead in the matter as criminal law is also implemented by the states, given the vast socio-cultural diversity across the various Indian states. The affidavit says:
“The fact that other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly. This country has its own unique problems due to various factors like literacy, lack of financial empowerment of the majority of females, mindset of the society, vast diversity, poverty, etc., and these should be considered carefully before criminalising marital rape.”
On the other hand, to cope with the rising cases of marital rapes, women’s rights activists want marital rape to be regarded as a criminal offense as it leads women to suffer from the worst possible torture and violence silently within their matrimonial homes.
However, the Center has a different view on it –
“Merely deleting Exception 2 will in no way serve any useful purpose as a man is said to commit ‘rape’ as defined under Section 375 of IPC cannot be the same in the case of marital rape.
“If all sexual acts by a man with his wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will squarely rest with the wife. The question is what evidence courts will rely upon in such circumstances as there can be no lasting evidence in case of sexual acts between a man and his own wife.”
The Justice Verma committee, formed in the wake of the Nirbhaya Rape Case in 2012, had recommended the removal of the exception made for marital rapes under the law. Even the high profile Pam Rajput Committee of the Ministry of Woman and Child Development had also criticized the government for its inability of criminalize the grievous offence of marital rape.
The Center has also elaborated that cases of marital rapes vary from state to state. Hence, any legal prohibition on the same had to be accompanied by change in attitude of prosecutors, police officers and members of the society in general.
Instead of criminalizing, the government has advocated a requirement for “moral and social awareness” to prevent such acts. Although Senior Advocate Colin Gonsalves – appearing in the case for one of the petitioners (a marital rape victim) – pointed out that till date, 51 countries have criminalized marital rape, beginning with Poland in 1932, the government appears to be in no hurry to change from its stance.