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'Sex under nuptial cover is not rape'

Sex under nuptial cover is not rape

It appears that, in India, some rapes are less than others. And, marital rape is one of the less equal, which is yet to be criminalised. "What may appear to be marital rape to an individual may not appear so to others," said the Union of India, in its affidavit, to the Delhi High Court, which is currently hearing a petition – filed by an NGO, RIT Foundation, along with the All India Democratic Women's Association (AIDWA) and a victim of marital rape. They are challenging Exception 2 of Section 375 (which says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape) and Section 376B of the IPC because it excludes marital rape as a criminal offence.

The submission by Monika Arora, the Central Government Standing Counsel, appeared missing before the line of reasoning. The written submissions made by the Centre in the case continue to prefer social institutions and traditions over individual rights and autonomy besides betraying the conviction that a law against marital rape would be used as a tool to harass husbands rather than being a means of protection against sexual violence. The Centre's written submissions supporting Exception 2 imply that a wife always gives consent to sexual relations in a marriage and weirdly argues that a wife needs the consent of everyone in society to give authenticity to her claim of being raped under nuptial covers. The standing counsel for the government further argued that marital rape cannot be criminalised in India because it has its own unique problems due to various dynamics like literacy, lack of financial empowerment of the majority of females, mindsets prevalent in society, vast diversity and poverty.

The Delhi HC bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar allowed the intervention by NGO, Men Welfare Trust, and allowed it to address the court. The NGO said that the existing laws are very much capable of dealing with the cases of sexual abuse of women and there is no need to either bring a fresh law to deal with it nor is there a requirement to withdraw the protection granted to husbands under Section 375 of the IPC. The NGO's plea also claimed that when a person gets married, he or she gives complete consent to the spouse to engage in intercourse and any such sexual act cannot be termed as rape. Incidentally, in February this year, the Supreme Court rejected a plea to criminalise marital rape declaring that it was not possible to amend the law for one person. Proving marital rape is a difficult thing and since it is not even a criminal offence, women suffering sexual abuse in marriage are doubly disadvantaged.

Sexual autonomy is still not a characteristic of our society – particularly for women– but even when it comes to violations in the name of marriage, there is no remedy for the victim. Marriage as an institution is today undergoing a renovation with a gradual progression in the attitudes and whims of people. Not to forget, in March 2013, before the new anti-rape bill was passed, the Parliamentary standing committee on home affairs published a report of its discussions on the Justice Verma Committee's recommendations. Several members of the standing committee claim that criminalising marital rape had the potential to destroy the institution of marriage, the report said. "In India, for ages, the family system has evolved and it is moving forward; if marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice," it said. There is still a long way to go, but in a landmark judgment this year, the Supreme Court ruled that extra-marital affair – although an admissible ground for divorce – cannot be categorised as 'cruelty'. In one masterstroke the apex court modernised marriage by taking focus – largely undue – away from the nuptial bed. But a new question remains unanswered: Why should marriage be the security cover for habitual rapists? Marital sex needs to be mutually agreeable and not degenerate into slavery or become a punitive tool. In any civilised society, an individual's body and dignity cannot be propitiated at the altar of family honour. After all, a rape by anyone is rape – neither more nor less.

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