“When two people are living as husband and wife, however brutal the husband is, can you call sexual intercourse between them ‘rape’?”

 

Editor: In a different case, the Supreme Court stayed the arrest of a man accused of rape after falsely promising marriage. The accused, in this case, was alleged to have promised marriage and then “brutally and sexually abused” the victim. In response, the CJI asked the girl’s lawyer: “When two people are living as husband and wife, however brutal the husband is, can you call sexual intercourse between them ‘rape’?”

 

In both these cases, the crimes amount to severe penalties under the Criminal Law (Amendment) Act, 2013.  Instead of meting out harsh punishment, the Supreme Court asked the accused whether he would be willing to marry the victim or risk going to jail.

 Activists say, by offering marriage as a solution to a rape victim, the judiciary failed to protect the rights of a girl.

 

 Equal rights activists have always worked hard against misogynistic mindsets like such as blaming the victim for the rape. This battle for equality becomes even more difficult when people in high offices make offensive remarks. With the scars of the Nirbhaya case still raw, and a series of rape and murders against minors, recently, the judiciary’s remarks have come under heavy criticism.

 

A total of 4,05,861 cases of crime against women were registered during 2019, showing an increase of 7.3% over 2018. 70% of women in India have faced domestic violence in some form.  Cruelty by husband or his relatives -rate 30%, The Rape - 7.9%.

 

The crime rate registered per lakh women population is 62.4 in 2019Section 375 IPC - Rape  Exception 1. A medical procedure or intervention shall not constitute rape.  Exception 2 Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

 

As per current law, a wife is presumed to deliver perpetual consent to have sex with her husband after entering into marital relations.  ‘Implied Consent

 

The Criminal Law (Amendment) Act, 2013, does not provide any recommendation for marital rape. The Justice J.S. Verma Committee had advised that the law should specify that a marital or another relationship between the perpetrator and victim cannot be a defense against sexual violation.

 

The Verma Committee had been constituted to recommend amendments to criminal laws Nirbhaya gang rape. It sought “an exception for the definition of marital rape in the existing laws.”The Verma Committee: “Relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”The Verma Committee:

 “Even when marital rape is recognized as a crime, there is a risk that the judges might regard marital rape as less serious than other forms of rape, requiring more lenient sentences, as happens in South Africa. In response, the South African Criminal Law (Sentencing) Act of 2007,

 

now provides that the relationship between the victim and the accused may not be regarded as ‘substantial and compelling circumstances justifying a deviation from the legislatively required minimum sentence for rape.” Landmark judgments on marital rape 1. The judgment of the European Commission of Human Rights in C.R. vs the U.K., had concluded that “a rapist remains a rapist regardless of his relationship with the victim”.

 

 2. In Shimbhu & Anr vs State of Haryana (2013), the Supreme Court said that the offer of a rapist to marry the victim cannot be used to reduce the sentence prescribed by law.

 In the past, the Supreme Court had ruled that – a compromise between a rape victim and the accused/convict not to prosecute the complaint further cannot be a leading factor in lesser punishment.

  The United Nations Declaration on the Elimination of Violence against Women defines violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”  In 2013, the UN Committee on Elimination of Discrimination Against Women (CEDAW) recommended that the Indian government should criminalize marital rape.