Editorial: Over to Supreme Court

The institution of marriage, built on the premise of equality, should not be allowed to be used as a cover for sexual violations. It should not give any special male privilege or a licence for unleashing a brutal beast. Looking at the way the current laws are being implemented, one wonders whether marriage automatically grants […]

The institution of marriage, built on the premise of equality, should not be allowed to be used as a cover for sexual violations. It should not give any special male privilege or a licence for unleashing a brutal beast. Looking at the way the current laws are being implemented, one wonders whether marriage automatically grants amnesty for all crimes of sexual violence. Therefore, there is a strong case in support of criminalisation of marital rape in a patriarchal society. With the Delhi High Court delivering a split verdict on criminalisation of marital rape, the ball is now in the Supreme Court to have a final say on the contentious issue. It is only appropriate that the Supreme Court resolves the matter as it involves substantial questions of law. While one judge of the Delhi High Court said “legitimate expectation of sex” is an “inexorable” aspect of marriage, the other said the “right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty”. The Central government, which has been resisting criminalising marital rape, had put forward the argument that since the matter involved intimate family relations and considering the social impact caused by criminalising marital rape, the High Court should defer hearing the case. The major bone of contention is the validity of the exception granted to married men under Section 375 which deals with rape. The exception states that sexual acts by a man with his own wife, if she is not under the age of 15 years, don’t amount to rape.

This exception was founded on the Victorian medieval law that husbands wielded their power over their wives. One of the main arguments against criminalising marital rape is that it would lead to the breakdown of the institution of marriage with wives falsely accusing husbands. It is also argued that the burden of proof would almost be impossible to meet in the case of marital rape. While the Domestic Violence Act can cover the offence of marital rape because “sexual abuse” is defined as one of the acts or conducts that constitutes “domestic violence”, there are certain inherent problems with this Act, making it inadequate to deal with cases of marital rapes. First, the Act does not explicitly define “rape” as is defined in the IPC Section 375. Second, it has been deemed as a civil law by the courts and thus the accused can get away without any jail term. It is time the patriarchal notion that husbands are the rulers of their wives, their body, mind and soul should be done away with and the voices of those who are silently suffering must be heard. It is disturbing that India’s justice system has a poor track record when it comes to dealing with violence against married women by their husbands.

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