Marital Sex even if forcible is not Rape; Delhi Court [Read Judgment and a close look at the Law relating to Marital rape in India]

A Special Fast Track Court in New Delhi has ruled that intercourse between husband and wife, even if forcible, is not rape.Vikash, who allegedly drugged and raped his wife, was acquitted after the judge substantiated that Indian rape laws don't apply to married couples. The woman in the present case claimed that her marriage was not legal because she had been abducted against her will, after being sedated by the accused and his father. She alleged that she was abducted by a man, who forced her to sign a marriage certificate while she was intoxicated, in a registry office situated in Ghaziabad. He then raped her on several occasions and threatened of dire consequences if she tried to complain to anybody.The accused denied all allegations and claimed that the marriage had been consensually solemnized in 2012. It was only on March, 2013 that they decided to get their marriage registered.The Judge found no evidence as to drugging of the wife or forceful marriage. It was noted in the judgment that she was more than 21 years of age when she solemnized her marriage with the accused.The Court thus ruled that, the prosecutrix and accused being legally wedded husband and wife, the prosecutrix being major, the sexual intercourse between the two, even if forcible, is not rape and no culpability can be fastened upon the accused.The judgment came from Additional Sessions Judge, Virender Bhat. This is the second time that a comment by him has stroked controversy, the first time being in October last year when he wrote that "girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage, and if they do so, it would be to their peril and they cannot be heard crying later that it was rape."This ruling comes just over a year after the Indian Government made an effort to strengthen its rape laws and increased sentences for the perpetrators after the hue and cry over the brutal gang-rape and murder of a student on a Delhi bus. These changes were based on recommendations of the Verma Committee, headed by late Justice J.S.Verma. The Committee had advocated criminalization of marital rape as well but this was rejected due to apprehension that it would dent the institution of arranged marriages and lead to frivolous complaints.The Committee stated in its report, "Under the Indian Penal Code sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts." Ms. Indira Jaising, Additional Solicitor General of India, in her key note address speech to the Justice Verma Committee, solicited the criminalization of marital rape in the country and said that, marital rape exemption in section 375 is a poignant reminder of the lowly status given to women in our society, almost akin to chattel. Why else would a crime of rape by a man against his own wife not be an offence? If rape is the violation of human rights then it is equally a violation whether committed by her husband or stranger.She condemned the consideration of eternal consent once the institution of marriage is solemnized and slammed the existence of such an exemption in a country which guarantees right to life and personal liberty to all citizens. She says that the marital rape exemption, which stands blatant testimony to the bias against women and their social and legal construction as appendages of men, be they fathers or husbands needs deletion. She thus emphasizes on the need to redefine "consent" in as in as much as that the existing definition of consent in Section 90 of the Indian Penal Code is inadequate. It is in the negative, what we need instead is a positive definition.The statistics in this regard are unnerving. The UN Population Fund states that more than 2/3rds of married women in India, aged between 15 to 49 have been beaten, raped or forced to provide sex. A look at the options a woman has to protect herself in a marriage, tells us that the legislations in India in this regard have been either non-existent or obscure.IPC in dealing with Rape, in a very constricted purview lays down that, an offence of rape within marital bonds stands only if the wife be less than 15 years of age.. Once, the age crosses 15, there is no legal protection accorded to the wife, in direct contravention of human rights regulations. Women so far have had recourse only to section 498-A of the IPC, dealing with cruelty, to protect themselves against "perverse sexual conduct by the husband". But there is no standard of measure or interpretation of the terms, 'perversion' or 'unnatural'. The Protection of Women from Domestic Violence Ac, 2005 did consider marital rape as a form of domestic violence.Even though, 172nd Law Commission report had commissioned deletion of explanation (2) of section...

Marital Sex even if forcible is not Rape; Delhi Court [Read Judgment and a close look at the Law relating to Marital rape in India]

Apoorva Mandhani

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