Marital Rape, The New Test For The Indian Judiciary
The Indian judiciary is experiencing a surge in public approval following popular landmark judgments in the past few days. The spree kicked off with a five judge bench of the SC upholding in a 3-2 verdict, the widely (mis)used the practice of Triple Talaq as unconstitutional.
This was followed by a nine-judge bench of the Supreme Court ruling that all Indians enjoy a fundamental right to privacy, which is intrinsic to life and liberty under Article 21 of the Indian Constitution.
What cemented the high rating was a CBI court in Panchkula convicting and sentencing a self-styled Godman to 20 years for the continued rape of his 2 female followers.
Yet the judiciary now faces a new test in the form of marital rape. A petition has been filled in the Delhi High court demanding the criminalization of marital rape. More than 50 countries across the world recognize marital rape as a crime yet India continues to clutch on to its defense of “family values” and refuses to criminalize marital rape.
The Supreme Court in early August after hearing a petition stated that “for forced marital intercourse and sexual acts part of offense of rape in penal law has been extensively debated and now it cannot be considered as a criminal act.”. This was in reference to an exception to Section 375 of the IPC. Under the exception (included post the 2013 criminal amendment),” sexual intercourse or sexual acts, by a man with his own wife, the wife not being under fifteen years of age is not rape.
While this could be seen as a way of effectively closing debate on marital rape, the Supreme Court was entertaining a petition dealing with the constitution validity of the provision since it allowed a physical relationship between a man and a woman between the age of 15 to 18 (18 years being the legal age of valid marriage). This still leaves scope for the issue of marital rape, and there is a current petition being heard by the Delhi High Court.
Swaraj Kaushal, the former Governor of Mizoram, and husband of External Affairs minister Sushma Swaraj tweeted, "There is nothing like marital rape. Our homes should not become police stations...There will be more husbands in the jail, than in the house." This was tweeted after the Central Government in an affidavit arguing against criminalizing marital rape stating that “it could become a phenomenon that may destabilize the institution of marriage and an easy tool for harassing the husband. The Delhi HC has also accepted to hear the pleas of a “men's rights NGO”, claiming the misuse of gender specific laws that target men. Thus there is strong opposition fighting against the decriminalization of marital rape, relying on the substantive argument of right to privacy.
The Apex court in its (now) landmark judgment upheld the right to privacy and has strictly limited the role of the governments and courts into the lives of people (opening new doors for LGBTQ issues as well). There have been arguments, which favor that since marital rape is a “personal/family issue” it falls outside the ambit of the court. Yet, one of the basics of Article 21 and the right to privacy is the right to individual freedom of each person, along with bodily autonomy and by instituting nonconsensual intercourse, it can be counter argued that it is a violation of Article 21. Further Justice Chandrachud in his separate opinions has quoted that “privacy must not be utilized as a cover to conceal and assert patriarchal mindsets.”
The past few decades have seen a concentrated effort for the decriminalization of this draconian, patriarchal law, which in the name of “personal family matters” has systematically oppressed women and denied them equality. The law finds its origin in the idea that women are essentially “chattel’ and once married become the property of men. In 2017, sugar coating patriarchal mindsets in the name of privacy is absurd and must come to an end.
While there has been debate regarding the misuse of this law and how a law like this could open gates to frivolous and false litigations but by using this argument, we can’t deny thousands of women across the country for who, marital rape is a daily, justice and accountability.
As the Delhi HC continues to listen to arguments on both sides, the onus is on the court to ensure that this backward, oppressive law is struck down and a new lease of life is given to thousands of women.
Will the Court, be able to pass this test?