November 21, 2024

Karnataka HC Shows Why Marital Rape Should Be Criminalized

By Sunil Garodia
First publised on 2022-03-25 07:09:09

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Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator.

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The Karnataka High Court is right. "A man is a man; an act is an act; rape is a rape, be it performed by a man the 'husband' on the woman 'wife'," a single-judge bench of Justice M Nagaprasanna of the Karnataka High Court said. There can be no deviation from this. No institution, even marriage, can be held above law and no person can be given an exemption from law just because of that institution.  Noting the negative psychological and physiological effects of the act, the judge said that the exemption granted to husbands was against the Right to Equality which was the "soul of the Constitution" and asked lawmakers to criminalize marital rape.

It is wrong to assume that marriage bestows an inalienable right on husbands to have sex on demand with their wives. That would make the institution of marriage one-sided. If it takes two to make a couple, the wishes and desires of both have to be accounted for in the relationship. There may be hundreds of reasons for which a wife would not like to have sex with her husband on a given day or a particular time. If the husband does not understand that, does not respect her wishes and goes ahead with the act despite her refusal, he has to be treated as rapist despite what the law says.

In January this year, the Delhi High Court had asked a pertinent question in this regard. It said that it is at a loss as to how the dignity of a married woman is not affected in the same way as an unmarried woman if a man, even if he is her husband, imposes himself on her. The High Court said that "relationship can't put the offence on a different pedestal."

Although another bench of the Delhi HC, hearing the case for removing the exemption granted to husbands in rape laws, had observed that the said exemption might have been granted by the legislature as there is a "qualitative difference" between marital and non-marital relationships and Union women and child development minister Smriti Irani had also replied in the Rajya Sabha that it is not advisable to treat every marriage as violent and every man as rapist, the fact remains that the latest National Family Health Survey found that 25% of women in India were victims of domestic and sexual violence. In any case, the qualitative difference cannot give husbands the right to lower the dignity of their wives. 

A huge number of marriages are violent and a huge number of men do rape their wives by going ahead with sexual intercourse against their wishes. They escape punishment because the law is in their favour. The institution of marriage will become stronger if the law is changed and wives are allowed to call out these beasts who degrade them and violate their dignity just because they are husbands. The government must junk its regressive mindset and remove the exemption granted to husbands in rape laws.