Without mincing any words and coming straight to the heart of the matter, let me say this from the bottom of my heart that I fully support the burgeoning demand for making marital rape an offence. A rape is a rape. Just because a man has married a woman that by itself does not confer the legitimate right to man to have sex with woman against her wish by forcing her in anyway.
It is most unfortunate that in India a woman is regarded as personal property of man who has been vested with the marital right to rape her whenever he likes and as many times as he want. Nothing on earth can be more unfortunate than this! Worse still, a woman has no remedy and if she dares to go to police station, she is laughed at by policemen who say that,Why did you marry him if you don't want to have sex with him?
This male dominated patriarchal medieval mindset must change if our nation is to progress! Our laws must be suitably amended and marital rape must be made a criminal offence which must contain more punishment than even rape because here a husband betrays the sacred trust created by the marriage and so must be punished most harshly! There can be no exception and zero tolerance has to be demonstrated towards not only rape but also marital rape!
It is in this context that we have to see and appreciate what a trial court in Delhi while emphasizing the need for a law to recognize marital rape as a crime said that lakhs of women are made to suffer by their husbands. Additional Sessions Judge (ASJ) Kamini Lau observed that absence of a provision to deal with marital rape as an offence exposes double standards and hypocrisy in law which has failed to recognize such incidents actionable offences.
Lau was at great pains to note that:
It is unfortunate that we are yet to recognize woman's right to control marital intercourse as a core component of equality. The shortfall in law was gross violation of the acknowledgement of a women's right of self-determination i.e. control on all matters relating to her body and criminalization of marital rape.
The court made the observations while rejecting the bail application of a Delhi resident, Praveen Arora who was accused of sodomising his wife. The wife alleged that her husband used to rape and commit unnatural sex with her. She further said that the man showed her adult videos and bit her. Denying bail to the man, the court said,There appears to be something seriously wrong with the accused and our society ...with sexual perversity pervading the system where lakhs of women suffer this kind of sexual violence and perversity in silence.
The court also cited United Nations Report – 'All Forms of Violence against Women' – which said 52 states have explicitly outlawed marital rape. The ASJ Kamini Lau made a scathing attack on this marital rape not being punishable in India by saying that:
Non-recognition of marital rape in our nation set upon the bedrock of equality is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women...it is rape when a man forces himself sexually upon a woman whether he has a licence by marriage law to do it or not. It is the need of hour to seriously recognize and address this problem. There can be no denying what ASJ Lau has said rather I would say that it is high time and now marital rape must be made an offence, to say the least.
Throwing out Praveen Arora's bail application, court said it could not allow him to get away with such perverse actions, which had caused physical and psychological damage to the young girl who was married for only eight months on account of his abusive relationship. Activists and lawyers agree with Lau. Senior advocate Meenakshi Arora,who is best known as the lawyer who propelled forward the ground breaking Vishaka guidelines in the Supreme Court minced no words in stating that:
A lot of violence exists in marriages,mostly in the form of spousal rape. We need to criminalise this so that the victims have a name for what they go through,so they have somewhere to turn to when they've been wronged.
In March 2014,Parliament rejected the Verma Committee's proposal to criminalise marital rape . A panel of lawmakers said the proposed marital rape law has the potential of destroying the institution of marriage. Women's rights activist Kalpana Vishwanath believes the decision could be attributed to patriarchal anxiety that stops people from taking it up as a serious issue.
While craving for my esteemed readers exclusive indulgence, let me tell them that the Verma Committee Report headed by former CJI late Justice JS Verma recommended strongly that the exception for marital law be removed. It also recommended that:
- The law ought to specify that:
- A marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation;
- The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;
- The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.
According to the United Nations Population Fund, marital rape is the most common form of violence against women in India. Two-thirds of married Indian women surveyed by the UN said their husbands had forced them to have sex on numerous occasions . This must end now!
There are 104 countries that have outlawed marital rape. Why are we among the few nations like Yemen, Iran, Libya and Sudan where marital rape is no offence and woman has no option but to submit to rape? The present legal system in India does not recognize rape as crime except when a man rapes his wife who is below 15 years of age! This is most outrageous and deserves to be discarded right now !
Why are we splitting hairs on making marital rape a punishable offence? Why can't we go headlong with the proposal to make marital rape an offence? Domestic violence in any form is most reprehensible and completely unacceptable! I earnestly call upon Centre and our lawmakers to immediately implement the proposals of Justice Verma Committee report and make marital rape punishable in same manner as rape with no ifs and buts whatsoever!
Every man has the birth right to do what he wants to do with his own body except obviously the right to commit suicide and here too Centre is now taking steps to decriminalize it so that committing suicide also becomes the birth right of not only man but also every person including woman! But no man including husband has the right to rape a woman against her will and even marriage confers no such right. It is only with her consent that he has the right to have physical relationship with her and not without her consent !
Those who fear that disgruntled wives would misuse this provision like they say has been the case with Section 498A must remember that just because a law can be misused is no ground for not making a law! I do, however, agree that some safety clauses must also be inserted like if the complaint is found to be false or malafide, woman can be fined or jailed or both!
Sanjeev Sirohi, Advocate
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut-250001, UP
