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Editorials/Opinions Analysis For UPSC 05 February 2022


Contents:

  1. Sex and violence

Sex and violence

Context:

Recently, the Union government informed the Delhi High Court that it is relooking at the issue of treating marital rape as a criminal offence.

Relevance:

GS I: Salient Features of Indian Society, Role of Women, Issues Related to Women

Dimensions of the Article:

  1. Legal provisions regarding Marital Rape
  2. Government’s Reluctance to Criminalise Marital rape
  3. Need for Criminalising Marital Rape
  4. Way Forward

Legal provisions regarding Marital Rape:

  • Section 375 of the Indian Penal Code:
    • It exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is not below 18 years of age.
  • Justice J.S. Verma committee report:
  • The Committee recommended that the exception to marital rape should be removed.
  • It also held that it is an outdated notion of marriage that treated the wife as the husband’s property.
  • Marriage Laws:
    • The notion of ‘implied consent’ within marriage is also reflected in marriage laws that allow for “restitution of conjugal rights”, a remedy that either party to a marriage may avail of.

Government’s Reluctance to Criminalise Marital rape:

  • In 2017, the Government had opposed the removal of the statutory exception in Section 375 of the IPC
  • The suggestion of Criminalising Marital rape given by Justice J. S. Verma Committee was ignored by the government.
  • Union Minister’s Response in Parliament:
    • The statement of the Union Minister for Women and Child Development in the Parliament indicates that the criminalising of marital rape is unlikely to be taken up in isolation when the government was engaged in a process to introduce comprehensive amendments to criminal law.
    • The Minister observed that- “it would not be advisable to condemn every marriage as a violent one, and every man a rapist.”
  • In 2016, the Government had rejected the concept of marital rape, saying it “cannot be applied to the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs and the mindset of the society to treat marriage as a sacrament”.
  • All these can be seen as a sign of the Government being hesitant to agree with the opinions that favours recognising rape as something that could happen within a marriage too.

Need for Criminalising Marital Rape:

  • Judicial Response: One cannot expect the courts to delay indefinitely a ruling on the constitutionality of the existing exception in rape law.
  • Distablising Effect on Institution of Marriage: The Conventional against criminalizing rape within marriage would destabilize the  institution of marriage and that it is liable to misuse will no longer hold good.
    • Domestic Violence Law: It enables complaints against physical and sexual abuse.
    • Indian penal Code: The IPC also holds cruelty to be an offence in a domestic context.
  • Hence making marital rape a criminal offence is unlikely to ruin the institution of marriage any more than a complaint of domestic violence or cruelty would.

Way Forward:

  • It is time for the Government to make its current stand clear on Marital Rape.
  • The view that that the wife is under the husband’s authority always should not be allowed to override the autonomy of married women over their person

-Source: The Hindu


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September 2022
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