Maroc - POPDIARIES.COM - A La Une - 04/Oct 09:30

Centre Is Against Labeling Marital Rape As 'Rape'; says its too harsh!

Labeling Marital Rape As 'Rape' There is no doubt that a husband certainly does not have a fundamental right to violate the consent of the wife, but as per the Centre, describing such violation as “rape” is “excessively harsh and therefore, disproportionate,” it said while stating its position for the first time on marital rape exception in law on Thursday. It is submitted that a husband can positively have no right under the Constitution to neglect the consent of the wife, be that within the context of the criminal law of India, however, extending the crime in the nature “rape” as recognized in India to the institution of marriage can be arguably considered to be extreme and therefore, oppressive. This Hon’ble Court has also adopted the weighing of two extremes in a bid to strike a balance in the perceived interaction between fundamental rights, the affidavit said. It is on this fact that the government has opposed the invalidation of the marital rape exception. Before the Delhi High Court in 2022, the union government had claimed that the “issue needs wider consultations” and that a review of existing criminal laws was ongoing at that point. “In so far as UOI is concerned, Mr Tushar Mehta, learned Solicitor General stated before us in no uncertain terms that UOI does not wish to take a stand in the matter. Consequently, an affidavit(s) having been sworn to the effect that UOI would like to consult before proceeding further in the matter. The HC, which comprised a two-judge bench, had given a divided judgement. Rajiv Shakdher, the justice who supported the reversal of exclusion, noted that discussions would have been more meaningful had Mr Mehta i.e., the learned Solicitor General had supported the court in the matter. The Centre admitted marital rape to be an act that “should be illegal and should be criminalised” in a 49-page affidavit submitted to the court by the Ministry of Home Affairs. However, its prescription for the crime was a refrain since the ‘‘consequences of such violations within marriage differ from those outside it.’‘ It is submitted that the act colloquially referred to as ‘marital rape’ ought to be illegal and criminalised. The Central Government avers that consent cannot be removed by marriage and that its revocation should attract penal implications. However, the penalty as associated to such violations in marriage is quite different from those outside marriage. Instead registration of marriage, parliament has provided different remedies which include criminal law provisions on consent in marriage. Section 354, 354A, 354B, 498A of the IPC & Protection of Women from Domestic Violence Act, 2005 provides for penal consequences in case of violation of the provisions of the law,” the affidavit mentioned. The Centre’s response came in a batch of petitions challenging the marital rape exception in the penal code- now the Bharatiya Nyaya Sanhita. Section 63(2) BNS and section 375 Indian penal Code Section defines rape and mentions seven kinds of consent which if corrupted becomes rape by a man. However, the provision contains a crucial exemption: “Any sexual connection, or sexual conduct, with a woman who is his lawful and willing wife, and she is not below the age of eighteen years, is not rape.” In 2022, the Karnataka HC paved the way for trial against a husband for raping his wife by labeling the marital rape exception as “age-old…regressive.” In their judgment delivering the High Court had said: “A man is a man; an act is an act; rape is a rape, whether it is done by a man ‘the husband’ on the woman ‘the wife’. ” When this trial was put under stay by the SC, the court agreed to entertain a broader constitutional issue on the MAR exception. This case was then linked to a set of appeals which come from the divided decision in the Delhi High Court. A wife forced to have sex with her husband is already looked at in Domestic Violence Act, 2005 and other provisions of the penal code. These provisions were used by the Centre to support its position that extension of the understanding of rape to include marital rape “may undermine the partnership of marriage and may cause significant disruptions to the manifestation of marriage. The matter of consent to such acts was described in details by the affidavit noting that a woman whether married or not, consent is same. But, ‘this one aspect’ should be balanced with ‘other differentiating factors’ and the factor that ‘overwhelming public interest is preservation of the marital institution’, government argued. According to the affidavit the right of equality was invoked the Constitution’s Article 14 while asserting that sexual violations in marital and non-marital spaces is two different situation and that their treatment in the law “as different and unequal” is entirely consistent of Article 14. “Therefore…the consent of a woman stands protected even within the institution of marriage. The only distinguishing feature is the different consequences that flow in law in case such consent is violated within the institution of marriage and outside it…to declare that the Section 375/376 of IPC, to be applicable to the institution of marriage would result in unsettling the delicate balance and sensitivity of the issue at hand”, the Centre stated. The Centre also argued the petitioners had the “misconception and the wrong notion” that marriage is “only a private institution”. It said, “this understanding is incorrect as the marriage, in any societal setup, also entails numerous social and public aspects…regulation of the said institution of marriage, the codification of certain rights and obligations that are created by virtue of such institution being deeply rooted in the country/society, is the norm across jurisdictions.” “In an institution of marriage, there exists a continuing expectation, by either of the spouses, to have reasonable sexual access from the other. Though these expectations do not entitle the husband to coerce or force his wife into sex, against her or his will. At the same time, it is submitted, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, or even from any other intimate relationship, constitutes as a sufficient basis for the Legislature to distinguish qualitatively between an incident of non-consensual sex within the marital sphere and without it.” The affidavit also stated that among the 15 states that responded to the Centre’s query on whether the marital rape exception must be retained, only Karnataka, Tripura and Delhi opposed the provision while Assam, Chattisgarh, Goa, Uttar Pradesh, Gujarat, Madhya Pradesh, Manipur, Uttarakhand and Ladakh were in favour.