The Centre Has Opposed Criminalising Marital Rape Again. No Prizes For Guessing Why

The Centre has once again opposed the move to criminalise marital rape. For this, the Centre has laid out some arguments. These arguments need to be analysed to judge their validity.

Argument 1: “What constitutes marital rape and what would constitute marital non rape needs to be defined precisely before a view on its criminalisation is taken.”

A rape is a rape. There should be no hairsplitting on this aspect. What constitutes marital rape is simple – an act of non-consensual penetration with a spouse. In its arguments, the Centre has looked at the difficulty in establishing evidence to distinguish an incident of ‘marital rape’ from an act of ‘marital non-rape’. Rape is an act of coercion – and hence, the injuries resulting from the assault here should be similar to those in other rape cases. In other words, establishing the distinction should not be difficult at all.

Argument 2: “It may destabilise the institution of marriage apart from being an easy tool for harassing the husbands.”

Let us look at the ‘harassing the husbands’ argument first. Yes, there is every possibility of the law being misused by women. But the principle of the justice system is to provide a mechanism to address a victim’s grievance – and not cater to those who might misuse the law.

The Centre brought up Section 498A of the Indian Penal Code (IPC), the anti-dowry law, to reiterate its argument. It may be a fact that Section 498A has been used to harass husbands and their loved ones. But this doesn’t mean that dowry harassment, on which the laws have been framed, has stopped. It is still a social evil. Besides, the judiciary has been constantly providing guidelines to handle the misuse of this law. After all, the point of having a law is deterrence. Its misuse, however, can be checked by having specific guidelines.

In fact, there are several laws which are being misused. For instance, Article 32 of the Indian Constitution provides for judicial activism through public interest litigations (PILs) in matters of public interest. However, this right has often been misused to file frivolous PILs. In fact, the Supreme Court has recognised this and has advised courts to penalise such litigants. However, the right to file PILs was not scrapped. So, the judiciary does have a mechanism to prevent the misuse of laws. Therefore, this shouldn’t be used as an excuse to justify the non-formulation of laws to protect victims.

Regarding the ‘destabilising the institution of marriage’ argument, it is just sad to see how deeply patriarchy is etched in our minds. Unfortunately, the Centre’s arguments seem to be based on the notion that one of the ‘fundamental duties’ of an  Indian wife is to attend to the sexual needs of the husband.

On the other hand, the institution of marriage shouldn’t be premised on the fulfilment of sexual duties. Marriage is an agreement of partnership – and not of sexual slavery. Marriage, therefore, cannot rob a woman of her right to dignity and reduce her role to only fulfilling a biological need – and certainly not in the name of protecting the perceived sanctity of marriage. The sanctity of marriage must encompass the physical and mental well being of both partners. Sexual coercion definitely does not uphold the sanctity of marriage.

We must also stop the ‘if not with the wife, then who else’ argument. This assigns a mandatory role for women – just like men are often ‘assigned’ the role of primary provider for the family. We must stop valuing partnerships through the lenses of sex only.

At the end of the day, ‘Indian values’, ‘sanctity of family’ are futile arguments. Treat marital rape for what it is – an act of crime. Our efforts must be focused not only on providing justice, but also the prevention of such crimes. An effective anti-marital rape law will do just that.

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