CRIMINALISATION OF MARITAL RAPE IS NEGOTIABLE

A 2-judge Bench of the Delhi High Court has delivered a split verdict in a batch of petitions challenging the exception provided to marital rape under Section 375 of the Indian Penal Code (IPC). One of the Judges held that the exception was unconstitutional, while the other Judge held that the provision is valid. The Judgment has again ignited the debate about the criminalization of marital rape in India. The term marital rape (also referred to as spousal rape) refers to unwanted intercourse by a man on his wife obtained by force, threat of force or physical violence or when she is unable to give consent. The words unwanted intercourse refers to all sorts of penetration (whether anal, vaginal or oral) perpetrated against her will or without her consent. In India, the definition of rape under section 375 of the Indian Penal Code does not include marital rape as a criminal offence so before taking any decision on marital rape we should look into the comment of a judge who said it is not unconstitutional and what are reasons behind it. 

REASONS BEHIND NEGOTIABILITY OF MARITAL RAPE 

Yes, Marital rape is an attack on women's sexual autonomy but the Criminalisation of it should be decided by considering certain issues there are 

1)Violation of doctrine of separation of power & Power of Court 

The issue of MARITAL RAPE EXCEPTION is Beyond the scope of this court's jurisdiction and that it may wield under any law or the Constitution since the marital rape exception if granted would create a new class (or) specie of offence which is beyond the power of judicial review conferred on this court. In other words, if the Marital rape exception is as sought, is granted, it would erode and(or) violate the basic feature of the Constitution, namely, the Doctrine of Separation of Powers that too in a matter concerning the criminalization of a sexual act committed by a husband on his wife, which is, otherwise, protected under Marital rape exception 

The Doctrine of Separation of Powers does not have a mere transactional construct i.e., division of territory/turf between various organs of the State but is meant to preserve the right of the Republic meaning the people to participate in law and policymaking lest it becomes the preserve of the few. Therefore, if this court were to grant the prayers sought by the petitioners, it would have the effect of keeping the Republic outside the pale of participation in law and policymaking on a sensitive social issue thereby truncating fundamental rights as well as empowering an "unelected body" to undertake an exercise which is beyond its constitutional mandate and expertise. The striking down of the Marital Rape exception would result in the creation of a new offence without considering its social impact. There is a need to create an ecosystem to deal with the issue at hand, such as the provision of a "definition", "processes", "safeguards", "evidentiary standards", and "forums" amongst others; none of which the court is equipped to forge or prescribe. The court is, thus, a sub-optimal forum for considering a variety of perspectives that are not only legal but also social and cultural.  

2)Value of marriage & Family & Question of proof?

The Meaning of rape is different when it occurs outside of marriage or within the marriage If, therefore, the husband, in such a situation, requests his wife, on a particular occasion to have intercourse, he is exercising a right that vests in him by marriage, and requests his wife to discharge an obligation which, too, devolves on her by marriage "If the wife refuses, and the husband, nonetheless, has intercourse with her, howsoever one may disapprove the act, it cannot be equated with the act of ravishing by a stranger. Nor can the impact on the wife, in such a situation, be equated with the impact of a woman who is raped by a stranger Any such contention would, at the very least, be purely presumptive so the issue has wide societal and sociological ramifications, which declines value of marriage & family this cannot be ignored

Question of proof If the Marital rape exception is removed yes women's sexual autonomy is protected but how are we going to prove that crime, how are we going to say that she had given that consent as this has been a grey area in line with the same grey area the absence of proof there is section 498(A) which is anti dowery law named as legal terrorism by many experts because it has been misused by women’s and used for blackmailing her husband and his family by false allegations this kind of incidents are also increasing as per NCRB data. 

3)Problems of Same-Sex Marriages 

Marriages have been universally acknowledged throughout history as a legal contract between a man and a woman in which there is emotional and sexual fidelity, along with childrearing.  But homosexual marriage would change this.  Since marriage is also a moral issue, redefining marriage is redefining morals.  Furthermore, marriage is an extremely widespread practice within any society and has many legal and moral issues attached to it.  So, when a marriage has been redefined the exception of Marital rape among those communities should be recognised 

 These are some of the reasons that should be negotiated before criminalising marital rape many countries have criminalised marital rape countries such as the U.K and CANADA. BRAZIL, SOUTH AFRICA, AUSTRALIA has reversed this kind of provisions due to imperfection of the legislation, so the topic should be discussed with legislative and people and should create an institution which can resolve these issues by protecting the sexual autonomy of women and other similar topics if any organs ignore this fact this can destroy the family institution and can have wide ramification on society.   

CH.J.V.K.Sathya Swaroop