Opinion The burden of proof
Can we trust a state like ours to investigate and decide upon sexual relations between man and wife?
The Indian Penal Code excludes marital rape by carving an exception to section 375,which defines rape. However,the debate around marital rape has been revived after the Justice Verma committee report recommended that marriage as a ground for defence,to the crime of rape,be omitted. Yet,despite this,the ordinance on sexual assault and now the Criminal Law (Amendment) Bill,2013 has decided to retain the exception to section 375 of the IPC relating to marital rape.
The existing legal framework addresses some of the issues pertaining to sexual assault within marriage. The concept of implied consent in the marriage has been diluted by the already existing legal provisions. For example,any husband having sex with a wife below 15 years of age (18 under the bill),with or without her consent,may be punished with 2 years of imprisonment and fine. Similarly,a husband having sex with his judicially separated wife without her consent is also punishable with 2 years imprisonment and fine. In any case,section 498A (introduced in the IPC by the Criminal Law (Amendment) Act,1983) is a potent legal tool in the hands of women subjected to cruelty by their husbands. The definition of cruelty is fairly wide and includes any wilful conduct which is of such nature as is likely to drive the women to commit suicide or to cause grave injury or danger to life,limb or health (whether mental or physical) of the woman.
Similarly,the Protection of Women from Domestic Violence Act,2005 (DV act) provides a civil law remedy to protect women from becoming victims and prevent occurrences of domestic violence. The DV act,however,does not specifically use the term marital rape. Yet,there exists the wide and comprehensive definition of domestic violence,which includes sexual violence,that is any conduct of sexual nature that abuses,degrades or otherwise violates the dignity of women. Thus,women who are victims of sexual violence may seek protection orders from the court. The provisions under this act are wide enough to cover wives as well as live-in partners. It must be remembered that the consequences for violations of protection orders under the DV act are penal in nature,and hence an effective deterrent.
Apart from this,divorce laws provide for cruelty as a ground for divorce. The act of forced sex,causing mental and physical trauma to a woman,will entitle her to get a divorce. Divorce has often been sought and granted on account of marital rape causing extreme mental trauma and cruelty. Marital rape remains fairly comprehensively covered in the Indian legal system.
Marriage in India is considered to be a sacrosanct institution,such that divorce is recognised only as an exception. As per the law,there is a flow of certain rights and duties of which conjugal rights is the most fundamental. So much so,that the denial of conjugal rights is considered to be cruelty by the courts and hence a ground for divorce. Though this right is available to both parties in a marriage,women,due to historical precedence of inequalities,have been denied an equal voice in sexual relations.
As always,there is the question of the failure of the state machinery to implement existing laws. Can historical inequalities be rectified by adding another law to existing laws that address specific crimes? Can the state be trusted with the power to invade the most private aspect of peoples lives,to the extent of having the right to scrutinise the act of sexual relations between man and wife?
The deletion of the exception under section 375,which would make non-consensual marital sex rape,does not require much drafting skill. But the implementation of any law on marital rape will be a daunting task. If the prosecution can show that there was sex and the accused husband was present,he can be punished for rape,since guilt is presumed till proven otherwise. And under the existing rape law,prosecution of the accused can be secured on the sole witness of the prosecutrix. In other words,what has been achieved in this country jurisprudentially,to make the rape law woman-friendly,may just get diluted by the inclusion of marital rape within the present definition. Further,if the legislature were to make law gender neutral (as has been demanded for a long time and even recommended by the Verma committee) women may end up being on the receiving end.
Has the state and its machinery been able to address the issues of womens inequality by empowering them socially,economically and psychologically? How does another law sort out a problem so deep-rooted in our patriarchal social structure? Is it even feasible to expect a state such as ours to investigate and decide upon private sexual relations between a man and his wife under a new law? Can sexual equality flow out of economic inequality? After all,the state does not even consider including the labour of a wife in a marriage as part of the GDP. The state has failed to provide women the equal right to matrimonial property,which would be far more effective in establishing an equality of voices in marital relations.
In fact,after the enactment and implementation of the DV act,the debate for the inclusion of marital rape within the definition of rape has lost its steam. There is no denying that women need added protection from crimes as heinous as rape. But there are laws aplenty to deal with this. If they have failed,it may be a good idea to examine why. But who will bell that cat when it is easier to get a new cat from the market?
The writer,founding partner for TRS Law Offices,is a practicing lawyer in the Supreme Court of India. Views expressed are personal
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