THE SUPREME COURT’S VERDICT ON MARITAL RAPE: CHALLENGES AHEAD

Abstract

Marital rape refers to "unwanted intercourse by a man with his wife obtained by force, threat of force, or physical violence, or when she is unable to give consent." It is a non- consensual act of violent perversion by a husband against the wife where she is abused physically and sexually. The concept of marital rape originates in the common law principle of marriage as 'coverture ', the idea that the woman is always under the husband's protection and authority. The grounds for "marital immunity" for rape prosecution were laid by Chief Justice Sir Matthew Hale in the History of the Pleas of the Crown, published in 1736, 60 years after his death. He wrote, "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." This "Implied Consent Theory of Sir Hale" found its way into the legal system of all former British Colonies that adopted the common law system. From the time of John Stuart Mill, Western democracies have grappled with the question of women's sexual autonomy, without which equality is an empty shell. In the Indian context, it would be worthwhile to peruse the written reply given by the Union Minister for Women and child Development, Maneka Gandhi in Parliament. She said," 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, myriad social customs and values, religious beliefs [and the] mindset of the society to treat the marriage as a sacrament." The Justice J.S. Verma Committee, which recommended sweeping changes in the law relating to offences against women, called for marital rape to be made an offence. The committee's recommendation of a separate bill of rights for women guaranteeing “complete sexual autonomy" further heralded a new dawn in the realm of women's right to her own body and the women's sexual autonomy. Endorsing the view of the Government through her minister, the Lawmakers reacted by stating that "If marital rape is brought under the law, the entire family system will be under great stress." Adding insult to injury was the twitter statement of Swaraj Kaushal, Mizoram Governor that if marital rape were to be criminalised, “there will be more husbands in the jail, than in the house." Here, it is pertinent to note that just days after Minister of Women and Child Welfare Maneka Gandhi submitted in Parliament that the government wouldn't criminalise " marital rape", a top U.N. official, Helen Clark, the UNDP Chief said that the issue is one of consent, not culture, suggesting that India would be violating the Sustainable Development Goals it has adopted if it did not amend the law accordingly.