Judge says Centre’s concern that criminalizing marital rape may destabilize the institution of marriage
Judge says Centre’s concern that criminalizing marital rape may destabilize the institution of marriage
the center is concerned that criminalization of marital rape Delhi High Court Judge C. Hari Shankar ruled out the strike, saying that destabilizing the institution of marriage is a “legitimate” one and that doing so may require the husband and wife to enter into an elaborate agreement before sex or a third party. may have to be invited to act as a witness. below marital rape exception In a divided decision delivered on Wednesday.
In a marriage, marital expectation is a two-way street, where “consent is given as a part of the intimacy of the husband and wife, although the desire to engage may be absent,” Justice Shankar said.
If every such case is treated as marital rape, “the only way for the partners in the marriage to survive shall be by a detailed written agreement and steps to be followed for courtship or intercourse or by making a detailed evidence record of each The act of intimacy and/or inviting a third party to act as a witness – neither of which is healthy for the very existence of the institution of marriage.”
He disagreed with the argument that only consent matters and marriage does not change anything and said that marriage is accompanied by obligations that the partners have to bear, including marital expectations, financial obligations and, finally, a duty to the child. Is.
“Therefore, the legislature has deliberately refrained from using the word rape in the context of a husband-wife relationship, not in order to protect the husband or the wife, but the people connected with them, that is, the families and the offspring,” the judge said.
Emphasizing the importance of conjugal rights in marriage, Justice Shankar observed that it has been recognized in the Hindu Marriage Act which provides for restoration of conjugal rights. “Remedy is available to both the spouses and refusal of sex by the spouse is considered cruelty and thus, is available as a ground for divorce.”
They also underlined that signs of injury on a partner do not necessarily mean that there has been non-consensual sex because “in the age of sexual liberation” injuries can be a sign of “obsession.” He was talking about sado masochistic sex.
“Forcible sex between husband and wife cannot be treated as rape. At the very least, it can be treated as sexual abuse as per the study of the definition of ‘cruelty’ found in Section 3 of the DV Act. It is clear. A wife cannot prescribe a special punishment which can be imposed on the husband ‘to satisfy his ego’,” Justice Shankar said.
Definition
Section 3 of the Protection of Women from Domestic Violence Act, 2005 provides the definition of domestic violence, which includes physical, sexual, verbal and emotional abuse.
The judge felt that the issue of marital rape needs to be considered from the social, cultural and legal aspects and the knowledge of the legislature needs to be respected and the decision on the matter should be left to the Parliament.
In February, Women and Child Development Minister Smriti Irani told Parliament, “To condemn every marriage in this country as a violent marriage and to condemn every man in this country as a rapist. I’m not right.” The government has repeatedly stated in Parliament and before the court that it is in the process of a consultation process on marital rape to seek the opinion of all stakeholders for comprehensive amendments to criminal laws.
In 2017, when the Delhi High Court was hearing the case, the government, in its affidavit, said it would have to be ensured that marital rape does not become an incident that destabilizes the institution of marriage and is an easy way to harass husbands. is instrument. , It said, “What may appear to be marital rape to one wife may not appear to others.”
This stance derives from the 167th report of the department-related Parliamentary Standing Committee on Home Affairs on the Criminal Law (Amendment) Bill, 2012, which was prepared after the Justice JS Verma Committee report, which also called for criminalizing marital rape. it was done.