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Why don't criminalise marital rape?

Article 375 of the Indian Penal Code defines rape and sexual assault. However, there's an exception within it that excludes non-consensual sexual intercourse by a husband with his wife if she is over 15 years of age from being considered as rape. This exception essentially means that marital rape is not recognized under the law if the wife is above 15 years old.

J.S. Verma Committee in 2013 recommended criminalizing marital rape. They advocated for the recognition of marital rape as a criminal offense, highlighting the need to address and penalize non-consensual sexual acts within marital relationships.

The rejection of the criminalization of marital rape, even after the recommendation by the Justice Verma Committee, was based on three primary grounds:

Destabilization of the Institution of Marriage: Opponents of criminalizing marital rape were concerned about the potential impact such a move might have on the institution of marriage. They argued that introducing laws to criminalize non-consensual sexual acts within marriage could disrupt the harmony and sanctity of marital relationships, potentially leading to increased divorce rates or discord between spouses.

Implied Consent within Marriage: There's a prevalent belief that marriage inherently implies consent for sexual relations. This perspective suggests that by entering into the institution of marriage, individuals inherently agree to engage in sexual activities with their spouse. Therefore, criminalizing marital rape might be viewed as conflicting with this understanding of implied consent within matrimony.

Burden of Proof: Proving cases of marital rape poses significant challenges due to the private and intimate nature of spousal relationships. Critics highlighted the difficulty in gathering concrete evidence in such cases.The burden of proof becomes particularly complex in the absence of witnesses or substantial evidence, making it challenging to establish non-consensual sexual acts within marriages.

These grounds formed the basis for rejecting the criminalization of marital rape even after the Justice Verma Committee recommended its recognition as a criminal offense.

In May 2022, the Delhi High Court issued differing opinions on the criminalization of marital rape in India. Justice Rajiv Shakdher invalidated the existing law, emphasizing that the right to revoke consent is fundamental to women's right to life and liberty. On the other hand, Justice C. Harishanker declined to criminalize marital rape, suggesting that the legislature should address this issue considering its multifaceted nature involving social, cultural, and legal aspects.

Despite the rejection of criminalizing marital rape, there are existing legal provisions that offer some recourse against cruelty within marriages:

1. Section 498A of the Indian Penal Code:

-This section deals specifically with cruelty against a married woman. It encompasses various forms of cruelty, including sexual, physical, emotional, or verbal abuse.

-If a woman files a case under Section 498A and proves cruelty, the accused can face imprisonment for up to three years.

-Controversy arises regarding the stringent nature of this law and concerns about potential misuse or false accusations to settle personal vendettas or disputes within families.

2. Protection under the Domestic Violence Act:

-The Domestic Violence Act offers protection to women in abusive relationships, allowing them to seek remedies like protection orders, residence orders, and financial relief such as maintenance and alimony.

-Unlike Section 498A, the act does not entail immediate imprisonment for the husband or the accused. Instead, it provides civil remedies and seeks to safeguard the rights and well-being of women facing domestic violence.

-Critics highlight the absence of immediate punitive measures, such as imprisonment, as a drawback in cases of severe abuse, emphasizing the need for stronger legal action.

Section 498A provides instant punishment for marital cruelty, while the Domestic Violence Act offers civil remedies without immediate imprisonment. Misuse concerns, especially in Section 498A, fuel debates on fairness in addressing marital abuse.

The reason for not criminalizing it is the misuse of gender laws and the challenges in proving it, but these arguments could apply to any offense, such as teasing or rape.

The European Commission stated that regardless of the relationship, a rapist remains a rapist; we only need clear guidelines and registration. If charges are proven, divorce should be granted, but it's unavailable in acts like the Hindu Marriage Act, Muslim Marriage Act, or Special Marriage Act.

In the case of a sexual participant, consent is required; no consent can be assumed or granted.

In conclusion, Criminalizing marital rape is not merely about penalizing an act; it's about upholding the sanctity of consent within all relationships, irrespective of their legal status.

Is it acceptable to refrain from declaring an offense as an offense simply because it's challenging to provide concrete proof?

Edited by: Matsoarelo Makuke

Photo sources: Asiana times 

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