Marital rape in India cannot be criminalised as India comes with its own set of complexities like literacy, lack of financial empowerment of the majority of females, the mindset of the society, vast diversity, poverty, etc., the affidavit submitted by the Centre in the Delhi High Court pointed out. The entire document can be read here.
The Centre has also pointed out that it would not tread the path of following western traditions blindly.
It said that before criminalising marital rape, it is essential to determine what constitutes ‘marital rape’ – the judgement as to whether the sexual act is marital rape or not should rest with the wife only.
The government has said the main problem lies in determining the value of evidence. “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 wife,” reads the affidavit.
Also, the government feels that criminalising marital rape might end up destabilising the institution of marriage and might lead to a rising misuse of the Article 498 A.
The government has drawn heavily from the Law Commission’s 172nd Report titled Review of Rape Laws and the 167th report by the Department Related Parliamentary Standing Committee on Home Affairs which did not recommend criminalization of marital rape.
Referring to the Justice Verma Report, the government said that the recommendation to remove the exceptions to marital rape needs to be taken into consideration, but it should also be accompanied by changes in the attitude of the prosecutors, police officers and the society as a whole. It also feels the need to include the opinion of the state governments on this matter, to avoid any further complications.
After the gang rape of Jyoti Singh in 2012, the Justice J S Verma Committee had backed the long standing demand of women’s activists that marital rape should be considered as a criminal offence. “The law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation,” the committee said in its report.
The government has quoted SC verdicts to embolden its stance
The Supreme Court on 10 August said that forced marital intercourse and sexual acts are not rape, hence, cannot be considered as a criminal offence.
The issue whether to include forced sex in marriage as rape has been extensively debated. Section 375 of the Indian Penal Code (IPC), which defines rape, has in it an exception clause which says “sexual intercourse by a man with his wife, the wife not being under fifteen years of age, is not rape.”
“Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence,” a bench of justices M B Lokur and Deepak Gupta said, reported The Indian Express.
The apex court, however, sought to know as to whether the Parliament debated the aspect of protecting married girls between the age of 15-18 years from forced sexual acts by their husbands. It also questioned whether the court could intervene to safeguard the rights of such married girls who may be sexually exploited by their spouses. The SC said that marriage of a girl below the age of 15 years, is illegal.
The Logical Indian community is perturbed with the Parliament’s inability to recognise marital rape as a crime in the Indian Penal Code. In 2015, a woman moved the apex court on the plea that she was raped and assaulted by her husband. She was also hospitalised due to her injuries. However, her husband was never prosecuted, and the case was dismissed because our law does not consider rape by a spouse a penal offence. It is a distressing reality that an abuse faced by women across the nation is not recognised by the Indian law. The Parliament needs to amend Section 375 of the IPC for the protection of its citizens, and the amendment should be made at the earliest.