THE Delhi High Court, hearing a bunch of petitions seeking criminalisation of marital rape in the country, has observed that the protection provided to husbands against being booked for rape may have something to do with the ‘qualitative difference’ between marital and non-marital relationships. Noting that it was merely having an ‘open discussion’ before arriving at a judgment, a two-member Delhi HC Bench said that the ‘qualitative difference’ is that in a marriage, a spouse has an expectation and ‘to an extent a legal right’ to establish conjugal relations with the partner. ‘A husband has no business to compel. (But) the court can’t ignore what happens if we strike down the exception,’ the Bench observed, adding: ‘The husband goes to jail for 10 years if he does this even on one occasion… We need a much more incisive insight into the issue.’
Indeed, an incisive and nuanced insight is needed into the reason for providing for such an exception in the Indian Penal Code, which makes India one of around 30 countries in which marital rape is not criminalised. In 2000, the Law Commission had opposed criminalising marital rape, arguing that ‘it may amount to excessive interference with the marital relationship’. In 2013, the JS Verma Committee recommended that marital rape be criminalised, but four years later, a Parliamentary Standing Committee opposed it on the grounds that ‘the entire family system will be under great stress’ if it were criminalised.
Such reasons given against removing this exception in law seem shallow, with not adequate consideration given to the welfare of women. But the difficulty of gathering evidence regarding this offence must be acknowledged. One facet of the issue that needs to be examined is the practicality and integrity of evidence if the married couple is going through a strained relationship or a separation when their accusations against each other could be suspect. However, domestic violence is a crime that is rampant but grossly underreported, and criminality of sexual violence in a marriage must be acknowledged and marriage must not be considered as lifelong consent.
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