Only a strangely myopic government can try bypass formulating law to check serial sexual abuse in order to ensure there’s “no misuse” of the yet-to-be proposed law. Centre submission to the Delhi High Court citing “misuse of Section 498A of the Indian Penal Code” to stop the court from criminalizing marital rape is exactly that kind of myopia.
Centre has argued that the institution of marriage will be “destabilised” if marital rape is criminalised. Much like in the case for diluting the impact of the domestic violence act by the SC by asking the government to form “family welfare committees” to first look at cases of Section 498A before an FIR can be filed by a battered woman, this time too, the institutions of marriage and family have come in the way of ensuring justice to women.
Centre has proclaimed that marital rape cannot be criminalised in India because there are problems due to illiteracy, unequal financial power between men and women, “mindset diversity”, etc, to the extent that “India mustn’t emulate the West”. In its written submission, the Centre has held:
“If all sexual acts by a man with his own wife will qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife. The question is what evidences the 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.”
According to Live Law, the legal jurisprudence portal, the Centre’s submissions to the court involve defence of exception 2 to Section 375 and Section 376B of the IPA, wherein marital rape is excluded as a crime.
“In the writ petitions filed before the Delhi High Court, the substantive challenge has been laid to Exception 2 to Section 375 as well as Section 376B of the IPC on the ground that it excludes marital rape as a criminal offence. It is contended that this exception is unconstitutional and violates the right of married women under Articles 14, 15, 19 and 21 of the Constitution of India. In one of these petitions, challenge is laid to statutory provisions of Section 198B of the Code of Civil Procedure read with Section 376 the IPC on the ground that differential procedure as well as the differential punishment is prescribed which is arbitrary and unconstitutional.”
Unfortunately, the Centre is in sync with a bench of the Supreme Court that held that it’s not a crime if husbands force sex upon their minor wives, because marital rape cannot be applied in “an Indian context”.
As we have written before, the apex court was responding to a petition by the NGO Independent Thought, drafted by lawyers including the noted Supreme Court advocate Gopal Subramaniam, who was a co-panellist on the Justice Verma Committee report that firmed up the anti-rape legislation in the wake of the December 16, 2012 gangrape and murder of Jyoti Singh in Delhi.
The petition wanted the court to intervene and read down Section 375 (2) of the Indian Penal Code, which is the clause in the rape law that makes the exception for a man to have sex with a girl aged 15-17 if she’s married to him.
That was an opportunity lost. Now the Centre’s written submissions have fallen back on the very same fears that women and their bodily integrity are dispensable to an imagined stability of the institution of marriage, despite it rotting within.
Just like in the case of SC’s order in the domestic abuse cases, family, marriage and other patriarchal setups take precedence over the woman’s own right to sexual autonomy, equality before law and right to life and liberty under Article 21.
Moreover, this viewing of marriage as a sacrament is in conflict with several constitutionally guaranteed freedoms and rights, most recently the right to privacy judgement that ensures sexual autonomy. How can sexual abuse by husbands of wives be then legalised under the garb of the “institution of marriage”?
It’s an abomination that the Union minister of women and child development, Maneka Gandhi, herself, who once held stellar views on how marital rape should be criminalised, had to do a complete volte-face, as part of India’s rightwing ruling regime.
The fait accompli approach to marriage and marital rape is truly a pox on the face of India 2017, because it essentially gives the right to rape and sexually abuse to 50 per cent of the population because they happen to be men. Data from the National Family Health Survey – fourth edition – has shown four out of ten women experienced spousal violence even in educated and wealthy states like Tamil Nadu.
Centre’s submission is one more window into its overall regressive mindset. By giving precedence to marriage over women, it makes the very institution unworthy of acceptance in its current form by women who are modern, progressive and of critical mental faculties.