New Delhi (13/05/2022): Split verdict by the Delhi High Court on criminalisation of marital rape deserves a crystal clear response from society at large and the community of women in particular – Marital Rape is as gruesome as rape by a stranger and cannot be condoned and thus must necessarily be punished.
Mahila Swaraj is of the firm view that given the patriarchal society in India, women are a disadvantaged group and therefore, find it difficult to raise their voice in cases of domestic abuse and sexual offences due to societal pressure. In such circumstances, reporting marital rape is even more difficult and once a woman picks up the courage to do so, to offer her no relief or remedy is a collective failure of a society governed by the rule of law.
Mahila Swaraj feels that non-criminalized nature of marital rape is a remnant of the British era, based on Victorian patriarchal laws that did not recognize men and women as equals, did not allow married women to own property, and merged the identities of husband and wife under the “Doctrine of Coverture.” Also, not recognizing marital rape as a crime is violative of Article 14 of the Constitution, whereby women are being categorized on the basis of their marital status. While an unmarried woman can get legal recourse on being raped by a stranger, married women have to bear the trauma and indignity within their homes. It is important to understand that married women may actually find it more difficult to escape abusive conditions at home because they are legally and financially tied to their husbands. This view has been held by Justice Shakdher, one of the judges on the 2 member bench of Delhi High Court as he held that Exception 2 to Section 375 of the Indian Penal Code (which prescribes the marital rape exception) is “violative of Articles 14, 15, 21 of the Constitution and hence must be struck down.” Mahila Swaraj welcomes this view of Justice Shakdher.
It also needs to be pointed out that marital rape has been impeached in more than 100 countries at present but, unfortunately, India is one of the only 36 countries where marital rape is still not criminalized. The UN Committee on Elimination of Discrimination Against Women (CEDAW) in 2013 recommended that the Indian government should criminalize marital rape. The JS Verma committee set up in the aftermath of nationwide protests over the December 16, 2012 Nirbhaya case had also recommended the same.
Mahila Swaraj believes that while conjugal rights are central to the institution of marriage, and their denial has been held as a valid ground for divorce, marital rape can hardly be seen as a practice to guarantee these rights. It is predatory and humiliating for the woman who needs to be respected as an individual and equal stakeholder in a marriage.
Mahila Swaraj therefore calls upon all women organizations, human rights organizations, parliamentarians and judiciary to review the existing laws and ensure dignity and safety to women. Such an act that puts women in bondage in a respectable institution of marriage is not only detrimental to the very institution, it is also a blot on the society and family values. Mahila Swaraj hopes that the reconstituted larger bench of the Delhi High Court which will hear the matter of criminalisation of marital rape will uphold the right of married women not to be raped within the confines of their marriage.
