The time has come for the Central Government to take a clear stand on the issue of making marital rape a criminal offence. This Information given to Delhi High Court Earlier this week that he was revisiting his position five years ago. In 2017, the government had opposed the removal of the statutory exception to Section 375 of the IPC for raping his wife if she is not below 18 years of age. Union Women and Child Development Minister Smriti Irani’s remarksDo not throw too much light on this matter in Parliament also. It only said that the government is in the process of introducing comprehensive amendments to the criminal law, which perhaps shows that the criminalization of marital rape is unlikely to be isolated. At the same time, he observed that it would not be appropriate to condemn every marriage as violent and every man as a rapist. One could simply interpret this as a sign that the government is wary enough to agree with the body of opinion that is in favor of recognizing rape as something that can happen even within a marriage. In 2016, the government rejected the concept of marital rape, saying that “it can be seen in the Indian context due to various factors such as education level/illiteracy, poverty, myriad social customs and values, religious beliefs and mindset of the society”. cannot be enforced. to treat marriage as a sacrament”.
There is no indication as to what kind of deviation, if any, from this formulation would lead to the proposed reconsideration. However, this question no longer precludes responses that are marked by ambiguity or tend to buy time. One cannot expect courts to delay indefinitely in deciding the constitutionality of the existing exception to the rape law. The traditional argument against criminalizing rape within marriage – that the institution of marriage would be ruined and that it was liable to abuse – is no longer correct. The country has adopted a domestic violence law that enables complaints against physical and sexual abuse. The IPC considers cruelty to be an offense in the domestic context. Therefore, making marital rape a criminal offense is unlikely to do more to ruin the institution of marriage than a complaint of domestic violence or cruelty. The exception given to marital rape goes back, as noted by the Justice JS Verma Committee report recommending its removal, to an age-old notion of marriage that the wife is treated as the property of the husband. The notion of ‘implied consent’ within a marriage is also reflected in marriage laws that allow for “restoration of marital rights”, a measure that can be taken advantage of by either party to the marriage. Viewing marriage through a chronological lens of ‘hiding’ – the idea that the wife is always in authority of the husband – should not be allowed to erode the autonomy of married women over her person.
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