Declare 'marital rape' a criminal offence in India.

Declare 'marital rape' a criminal offence in India.

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Aditi Mishra started this petition to Government of India and

India is one amongst the 36 countries in the world today which has not criminalised marital rape. 

The recent ruling by the Kerala High Court has once again reiterated the need to criminalise marital rape. 

Few of the important points to note from the judgement are:

- "In modern social jurisprudence, spouses in marriage are treated as equal partners and husband cannot claim any superior right over wife either with respect to her body or with reference to individual status. Treating wife's body as something owing to husband and committing sexual act against her will is nothing but marital rape. Right to respect for his or her physical and mental integrity encompass bodily integrity, any disrespect or violation of bodily integrity is a violation of individual autonomy."

- "husband’s licentious disposition disregarding autonomy of wife is marital rape".

- "Merely for the reason that the law does not recognise marital rape under penal law, it does not inhibit the court from recognising the same as a form of cruelty to grant divorce."

Justice A. Muhamed Mustaque and Justice Dr. Kauser Edappagath made astute observations with regards to the societal limitations of women and the fact that cases such as the one in question are not one-off.

- "Marriage and family are two interlinked structures within the society. Each society in different parts of the world has its own ethos about marriage and family. However, all such societies share a common notion that the individuals’ union are for companionship, mutual respect and happiness. In an arranged marriage that we follow traditionally in our country, the choice for a woman is limited. "

- "Perhaps we are accountable for her tears. We see this is not a solitary instance. On a day-to-day basis, we see many many like her."

 

It is interesting to note that in 2015, in the case Arnesh Kumar v. State of Bihar, the apex court observed "that criminalising marital rape will be the collapse of the social and family systems amidst the already existing biased laws.", begging the question whether social and family systems are based on subjugation and ill-treatment of women? 

Starting from the Phulmani case of Bengal in 1889 to the the Verma Committee, the issue of marital rape have come under strong scrutiny. Be it under the label of destroying the institution of marriage or the guise of 'misuse', existence of such a regressive law reeks of patriarchy, reiterating the ideas of control and power over women as well as taking away agency from them. 

It is high time that Indian Courts in particular and society in general rethinks and redefines ideas of marriage and family, giving due consideration to autonomy and rights of women. 

India, the Government and the Courts, should declare marital rape a crime punishable by law, ending impunity for one of the most horrifying and repressive issues existing in the country. 

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