The Supreme Court has asked the Centre to explicate its stand on marital rape. It remains to be seen whether the Centre maintains the position it took in a 2017 affidavit filed by the home affairs ministry in the Delhi High Court, which was hearing petitions on the same issue — that while men who force themselves on their wives should face “penal consequences”, punishing them for rape would “severely impact the conjugal relationship” and “have a far-reaching effect on
The Supreme Court has asked the Centre to explicate its stand on marital rape. It remains to be seen whether the Centre maintains the position it took in a 2017 affidavit filed by the home affairs ministry in the Delhi High Court, which was hearing petitions on the same issue — that while men who force themselves on their wives should face “penal consequences”, punishing them for rape would “severely impact the conjugal relationship” and “have a far-reaching effect on the institution of marriage.” To be sure, the problem of non-consensual sexual intercourse within marriage won’t stop existing even if we don’t call it rape. The Criminal Law (Amendment) Act of 2013 — it acknowledged that marital rape was a form of abuse, but allowed an exception for sexual relations between a man and his wife, provided she is over the age of 16, and said this would be considered consensual — came about as a result of far-reaching recommendations of the Justice Verma Committee, but key suggestions were not included. One of them was to do away with the legal provision that did not recognise marital rape. Instead, the exception, which went against the very spirit of the law that sought to criminalise all grades of sexual assault against women, was retained.
The argument propounded by the Centre is a realistic one: Something must be said for restricting the limit of State power over individual life and liberty. The trouble is that the individual whose freedom is being considered here is male. Let’s consider a thought experiment, where the protected individual is female instead. How different would the Centre’s affidavit have been if it was a married woman’s life and liberty at stake? Would there be a presumption of lies, for instance? What legal markers would constitute a healthy, and socially and culturally acceptable conjugal relationship, instead? These answers, to quote the Centre’s previous affidavit, will have far-reaching effects on the institution of marriage.
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