Parliament and courts have lost opportunities to bring about change on this sensitive issue.
Recent judgments by the High Courts holding that any sexual act between a man and his wife, even if it involves force, is not rape, perhaps highlighting the deficiencies in the IPC. Why is there such a provision in the IPC in the first place?
Shraddha Choudhary: Section 375 of IPC Defines the offense of rape. It describes what physical actions are required to commit a crime, and is a very broad definition. The second important element of this definition is consent. Where these acts are done without the consent of the woman, then the offense of rape is made. This is the general rule, but there is an exception, which states that sexual act by a husband with his wife, if she is 18 years of age or above, shall not amount to rape. While the rest of the provisions focus on consent, this exception does not talk about consent at all. This creates the legal presumption that a wife always consents to her husband, which means that his non-consent is irrelevant. Surely it is possible to get relief for rape within a marriage, but not in the form of rape. If bodily injury is caused, then separate atonement can be made for that. Marital rape can be recognized as a form of cruelty, it can be grounds for divorce, but it is not punished as rape, which is a very distinct wrong and has very different terms. This is where the law is flawed. As far as fixing it is concerned, either Parliament can make a law and remove this exception, or a Constitutional Court will have to strike it down.
Manuraj Shunmugasundaram: How did we end up here? Partly because we inherited an IPC before the Constitution came into force, but that does not free us from the shortcomings of the current legal framework and ‘legal imagination’, as Ms. Choudhury puts it. The so-called marital rape immunity or rape exception, as we have structured it in our Penal Code, has been abolished in other jurisdictions, and rightly so. Marital rape today exists in a very unique type of stratosphere in that it can be grounds for cruelty and, therefore, for divorce under personal laws, but it will not convict the offender of the crime itself.
where is the fault?
Shraddha Choudhary: Primarily, it should have been up to the Parliament to legislate and remove this exception. But we must also note that the courts have noted the cruelty of this exception and have acknowledged its problems. They have not proceeded to eliminate it completely. As far as Parliament is concerned, it is quite common for the court to give up on the law which may not provide very good political mileage. we saw it with section 377 Too. Ultimately the court had to dismiss it.
Why were the recommendations of the Justice JS Verma committee on marital rape not adopted when the criminal law was amended in 2013?
Manuraj Shunmugasundaram: As recommended by the Justice Verma Committee, Parliament missed an opportunity to implement the changes. The official response was that they wanted further discussion about marital rape laws before enacting it as it also involved other questions of law. There may be some element of truth to it, but it highlights sensitivity to issues that may not have political mileage or may in fact have other political implications. Supreme Court missed a great opportunity to go into these matters free thought case in 2017 Article 142The Supreme Court has powers almost equal to the power to make laws. like with Navtej Johar Case (2018) When the Supreme Court lost an opportunity to confer the full spectrum of civil marital inheritance rights to non-heterosexual couples, the Supreme Court equally missed an opportunity. free thought The case is restricted to expanding its range to cover all forms of marital rape and not just women under the age of 18.
Comment | Marital rape: a disgrace to women
When the Supreme Court was reading the exception to section 375, shouldn’t it have given the same protection to adult women?
Shraddha Choudhary: The court took a conscious decision to confine itself to the question of minors. The matter was framed as a question of parity between the IPC on the one hand and Protection of Children from Sexual Offenses (POCSO) Act, 2012, on the other. I am sure a lot of constitutional commentators will talk about the merits of judicial restraint, and there is an argument to be made for this.
The issue is sensitive and can be controversial because many people, including educated, seemingly liberal people, still believe that criminalizing marital rape would somehow threaten the ‘institution of marriage’ and that it would in some way be a crime against husbands. Will become a witch-hunt. these logic channels Victorian Ethics of the IPC, which we’ve tried to combat, but haven’t quite done it, or as well as we probably would like. That morality also took hold of the common law of concealment, whereby women had no rights after marriage, their rights to be exercised by their husbands, so they were reduced to the status of an entirely estate property. Were.
Decisions of courts around the world, such as the European Court of Human Rights, have emphasized the crime of rape and violence, rather than the relationship between the perpetrator and the victim. To what extent are these developments relevant for India?
Manuraj Shunmugasundaram: They are extremely relevant in the context of how our own jurisprudence may evolve in the years to come. We have seen how LGBTQ jurisprudence in other countries has somewhat influenced India’s own jurisprudence over the past 15 years. Navtej Johar Regarding LGBTQ rights has changed. Ultimately, recognition of the perversion of the marital rape exception must come from within. For that we only need to look at Article 14. The most compelling argument in support of the marital rape exception, as is prevalent in our law today, is that the institution of marriage is sacrosanct and should not be dissolved. But the Constitution does not give any importance to any particular institution; The constitution is clear in the importance given to the individual. An individual is entitled to equality, equal protection and autonomy. Therefore, the exception of marital rape is itself unconstitutional and violative of Article 14. In addition, marital rape is a breach of the dignity of a person, which is protected under Article 21. Just because the nature of the relationship between the victim and her is one of culpable marriage, it does not acquit a person of the crime. The argument built around the institution and sanctity of marriage must be broken, which has happened in other jurisdictions around us. Once we realize this, our society will have no choice but to remove the marital rape exception.
Read also | Criminalization of marital rape can destabilize institution of marriage, Center tells HC
Shraddha Choudhary: We can also learn from the experiences of countries that have outlawed marital rape. This did not lead to witchcraft against husbands and certainly did not destroy marriages. There are socio-economic differences between India and some countries that have criminalized marital rape. I was reading that the government used it as an argument against criminalizing marital rape, as well as saying that poverty, illiteracy and diversity in this country complicate the issue. But we need to question the extent to which these factors map to the criminalization of marital rape, and to what extent we can see them hinder us.
What are the barriers to reporting and prosecuting a crime like marital rape?
Manuraj Shunmugasundaram: Most acts of sexual violence stem from eyewitnesses, and leading the evidence is a challenge in itself. I don’t understand why marital rape should be more difficult to report or prove in court than any other sexual offense. The POCSO Act is an important step towards ensuring justice for the victims of child sexual abuse. We now know that most perpetrators of child sexual abuse occur within the family, but we don’t give them immunity, do we? We do not say that there is any institution of the family, so let’s protect the criminals who are within the same family. We need to show that demanding protection of a husband from marital rape is as absurd as demanding protection of a family member from child sexual abuse.
Shraddha Choudhary: Marital location creates problems with crime reporting and prosecution—not because of the nature or criminalization of the crime, but because of the way that criminal justice system officials think about these things. Police, judges, prosecutors and anyone with whom the complainant will have to interact – it is they who, unintentionally or knowingly, are likely to create obstacles to reporting and prosecution because, in their mind, consent may be assumed within the marriage, Even if the law has changed.
Would you agree that the social structures that justify violence against women pose a challenge to the implementation of laws on rape? Has the mindset changed even after the amendment of the laws?
Manuraj Shunmugasundaram: Social change is very important. Not only do patriarchy or misogyny need to be changed, we need to challenge assumptions about the sanctity of marriage. Every time we indulge in blaming the victim we need to examine ourselves. We also need to challenge our stereotypical mindset when it comes to discussing sex crimes or crimes within the family. Back to POCSO, to date, such crimes are largely under-reported, as most of the abuse occurs within the family.
Shraddha Choudhary: Certain power structures exist in our society, which are usually based on caste and gender. When these power structures are challenged by laws, rhetoric of abuse comes to the fore. It is the strongest type of weapon against the implementation of such laws. It is important to counter such narratives as well as establish that the potential for abuse is very small. We need to help the victims, complainants and . must believe [see this] Abuse masquerading as a red herring. we need to fight it [misuse argument] Strongly in politics, decisions, civil society.
Manuraj Shunmugasundaram: The roadmap is readily available for the Constitutional Courts or Parliament to act on it. We need to frame the discussion around rape as a crime against bodily integrity and we need to emphasize the importance of the rights of the individual, as stipulated in Article 14. We need to tell people that every action must be protected by consent.
Manuraj Shunmugasundaram is a Madras High Court advocate and DMK spokesperson; Shraddha Choudhary, Lecturer, Jindal Global Law School, Sonepat, and PhD Candidate (Law), University of Cambridge
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