Note to Former CJI Misra: Rape Is a Crime – Whether Marital or Not

Cloaking marital rape under the garb of ‘values’ and ‘sacredness’ only goes on to prove our regression.

Image used for representational purposes.

(Photo: The Quint)

Former CJI Dipak Misra on Monday, 8 April, said it was his “personal view” that marital rape in India should not be criminalised.

Addressing a bunch of law students in Bengaluru, Misra, who retired in October 2018, said:

“I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families, and our country is sustaining itself because of the family platform which upholds family values.”

Dipak Misra, Former Chief Justice of India

Former CJI Dipak Misra.(Photo: The Quint)

Not just this, he also went on to say that marital rape was borrowed from other nations and did not apply to India.

But, wait.

Isn’t the Indian Constitution itself borrowed from the Constitutions of at least 10 other countries?

The Indian Constitution borrowed laws from Japan, based on which the Supreme Court functions. And guess what, Justice Misra, marital rape is a crime in Japan.

Govt May Deny Marital Rape, But Govt Data Does Not

India is among the three dozen countries that are in denial about marital rape.

The National Health and Family Survey said that 5.4 percent women in India have experienced marital rape. Now, this is only a small portion of the population that have admitted to it. Imagine the number of cases that go unreported or even recorded, because of social stigma.

Section 375 of the Indian Penal Code (IPC), which defines rape, makes a stark exception for marital rape alone.

“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape,” it states.

Family Values Used As Excuse?

Like Justice Misra, culture and family values are often cited as "reasons" or rather "excuses" for not criminalising the violent act.

In 2016, Women and Child Development Minister Maneka Gandhi, said that marital rape cannot be considered in the “Indian context.” In a written reply to a question in Rajya Sabha, she said:

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament etc.”

Maneka Gandhi, Women and Child Development Minister

The Blatant Hypocrisy & Pervasive Regression

But did the government and Supreme Court have no objections when the Domestic Violence Act of 2005 was passed?

When that does not affect the institution of marriage then why would criminalising marital rape be a threat to the “sacredness” of it?

Isn't it hypocritical to think otherwise?

Also, why the special attention to fraudulent cases only when it comes to laws that specifically concern women?

In a 'landmark' order in October 2017, the apex court criminalised sex with a minor wife aged between 15 and 18 years, saying the exception in the rape law was arbitrary and violative of the Constitution. Not otherwise, mind you.

The Modi government has then submitted before the court:

“What may appear to be marital rape to an individual wife, may not appear so to others.”

Not only does this statement reek of regression, but also shows the standard blueprint the accused would use to defend themselves.

Not a Question of ‘Should’ But ‘When’

What appears Sati to an individual may not appear so to others. But India criminalised it.

What appears Jauhar to an individual may not appear so to others. But India criminalised it.

What appears marital rape to an individual may not appear so to others. But WHEN will India criminalise it?

A Gujarat High Court observed in 2018 that marital rape is not a husband's privilege but an act of violence. Rape is a crime, a violent one – whether marital or not.

It is unfortunate and outrageous that our lawmakers and the lordships don't think so.