Wednesday, December 11, 2019

Big Debate : Should Marital Rape Be Criminalised Or Not?

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  1. In a recent deliberation over criminalising marital rape on Tuesday, Centre government had filed a affidavit to Delhi high court stating that criminalising marital rape may destabilise the institution of marriage and an easy tool for harassing the husbands.

The centre supported this statement by giving an argument that a growing misuse of section 498A (harassment caused to a married woman by her husband and in-laws) of the IPC has been observed by the Court.

The government’s response is to the petitioners challenging the declaration of IPC 375 as unconstitutional because it didn’t recognise the sexual assault by husband a crime.

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Colin ¬†Gonsalves , one amongst the petitioners¬† argued that marriage can’t be used a license to forced sex by a husband with his wife. He reiterated that women must have control over their bodies equally as a unmarried women.

The issue starts with the distinction made by this section that does not give the married women to have the authority to deny sexual intercourse. The consent is denied in the name of preserving the ‘sanctity’ of marriage.

The affidavit submitted by the centre clearly stated that, “What may appear to be marital rape to an individual wife, it may not appear so to others. As to what constitutes marital rape and what would constitute marital non-rape needs to be defined precisely before a view on its criminalisation is taken.” The affidavit emphasized that moral and social awareness shall help in stopping such act.

The affidavit also raised the question regarding the investigation in case of such allegations because their can be no lasting evidences of sexual activity between a husband and a wife. The centre also denounced to follow the footsteps of other countries arguing that India has their own set of unique structure of society and its problems and we can’t ¬†follow them blindly.

The subject of criminal law is in the concurrent list and implemented by the states individually which shall cause more problems because of diversified cultures.

However the Court has asked the government to take a stand on the petitioners in favour of criminalising marital rape. The court has agreed to listen to pleas by RIT Foundation and All India Democratic Women’s Association. Giving voice to all the sides, the court will also hear the plea by NGO Men Welfare Trust who represent men victimised by alleged misuse of gender laws who oppose the petitions to make marital rape a criminal offence.

One can’t completely denounce the fact that IPC 375 has been misused in recent years but also we can’t blindfold ourselves that the women are still subjugated whether financially, socially or physically.

India may have a diverse culture, religion and problems such as illiteracy , poverty and lack of awareness amongst people and definitely we as a country should not follow the ‘west’ blindly. But can we blindly shun one’s human right to have control over the body in the name of culture or the ‘sanctity’ of marriage. Is not one’s right over the body above all the cultures, diversity, ethnicity or geographical boundaries? Can’t the problem of misuse of IPC 375 be solved by better administration, less corruption and more transparency in the functioning of judiciary?

Shall women still suffer in the name of preserving marriage. Is one’s freedom to choose the way they want to live without harming the other person becomes inconsiderable when it comes to a women who’s married? That if investigation for such crime is difficult and tricky , we should totally shun the idea of addressing it at all? Are women as a human not logical and rational enough to decide whether they want to have physical relation or not? And if they don’t want to have, and the husband forces her shouldn’t it be considered rape? Isn’t it alarming enough that we should redefine the boundaries around what we consider rape and what not?

Is marriage in India a silent consent to coercive sexual assaults?

So what’s your take on this ?

Let us know in the comments section below.

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