UTKARSH ROSHAN | 10 JANUARY, 2019
The issue of marital rape is now both in the parliament and sub judice in the court.
‘Marital rape is not about sex, but about violence; it is not about marriage, but about lack of consent. Rape is rape and it should be penalized whenever and wherever it occurs.’ MP Shashi Tharoor told The Citizen about the private member’s bill ‘The Women's Sexual, Reproductive and Menstrual Rights Bill, 2018’ introduced by him in the parliament.
‘More than anything, the fact that for the first time something of this sort, is there in the public domain for discussion at least is great. Secondly, because it is in the parliament it has some value, though it’s a private members bill, it still has some value. Also, the matter is in the high court as well, so this might even get referred in the court by the petitioners to give some traction to their argument,’ said Vikram Srivastava who is a human rights advocate and the founder of Independent Thought. Independent Thought had filed a petition against the violation of the rights of girls who are married between the ages of 15 and 18 years in 2013.
The Centre in an earlier affidavit submitted before the Delhi High Court in 2017 had stated that criminalizing marital rape could destabilize the institution of marriage in this country. ‘I don’t think that criminalizing marital rape would affect the institution of marriage, but when victims don’t get to raise their voice against such issues that’s when the institution of marriage gets destroyed,’ said Chitra Awasthi, the Founder of RIT Foundation.
RIT Foundation and the All India Democratic Women's Association had filed a petition in the Delhi High Court challenging the constitutionality of Section 375 of IPC saying that it discriminates against married women. They argue that when sodomy, sexual assault, murder are not decriminalized in marriage, there is no reason rape should be.
Countering another argument that there aren’t many marital rape victims, Awasthi said that ‘there is enough data on marital rape. In fact, there is a National Crime Records Bureau study, that show that a large proportion of rapes that take place are marital rape.’
Srivastava added that ‘the whole act of marital rape itself is against the basic freedom of any individual, so I don’t think numbers should matter in such a principal issue, even if there is one case that infringes on such principle right of a person, there should be a provision to prevent that from happening. Numbers only should not define what the law should be.’
The Centre in the affidavit had also mentioned that a law like this could also be misused to harass men. ‘Any law can be misused for that matter, and maybe every law is getting misused, but that should not refrain a country from doing what is right’ said Srivastava.
In 2018, Justice JB Pardiwala in the Gujarat High Court while hearing a petition filed by a doctor seeking quashing of a FIR of rape registered against him by his wife, said the attitude that promotes rape in a marriage can be removed only by making marital rape “illegal or an offence”.
‘A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape. It allows the men and women to believe that wife rape is acceptable. Making wife rape illegal or an offence will remove the destructive attitudes that promote the marital rape. Such an action raises a moral boundary that informs the society that a punishment results if the boundary is transgressed. The total statutory abolition of the marital rape exemption is the first necessary step in teaching societies that dehumanized treatment of women will not be tolerated and that the marital rape is not a husband’s privilege, but rather a violent act and an injustice that must be criminalized.’ Justice Pardiwala had observed in his judgement.
The supreme court judgements from last year have also raised hopes among the activists working for the criminalization of marital rape ‘It’s a matter of time and I’m pretty sure that maybe with this new year marital rape would be criminalized,’ said Awasthi.
Adding to that Srivastava said that, ‘I feel it’s just a matter of time that a decision on the issue could come either by the parliament or by the judiciary, just like 377. As a society as a nation we have moved a long way and after 79 years after independence, it is time to relook over this issue more seriously, and one can’t use the camouflage of culture, religion, family and institution, this won’t work for long.’