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Intrusion of law in bedroom is bad

It doesn't make good sense to forcibly make and impose laws punishing 'marital rape' when the need of the hour should be to educate society

There has been a cacophony from various quarters, especially from feminine activists, that the concept of 'marital rape' should be recognised and the men forcing their wives to be intimate against their willingness should be tried under the law of rape. What an irony that instead of governing society through lessons of morality, ethics and compassion or using the tools of counselling, on each issue of the slightest importance we start emphasising on making laws.Intrusion of law in bedroom is bad

What else will you criminalise in a domestic relationship? You have already started sneaking into bedrooms like a voyeur. There is a strong possibility of vested interests promoting such non-issues. It has been frequently observed that as different watches and clocks give slightly different timings on the same scale of the Standard Time, different courts give varied, divergent and, at times, contradictory judgments on the same matter of law. The reason behind this can be attributed to judicial overreach crossing the barricades of the separation of power norms. Where is the need for individual observations all the time? This phenomenon will surely give rise to divergent judgments from Bench to Bench.

A Division Bench of the Kerala High Court comprising Justices Mohammad Mushtaq and Kausar Edappagath on August 6, 2021, dismissed the appeal of a man who had challenged a family court order allowing his wife's plea for divorce on grounds of cruelty in the name of forced copulation, besides unnatural sex and dowry demands.

However, Section 375 of the IPC provides no space for marital rape. Its Exception 2 states: "Sexual intercourse or sexual acts by a man with his wife, the wife not being under 15 years of age, is not rape." It implies that sex with a wife who is over 15 is not rape, even if it is without her consent. However, in October 2017, in the Independent Thought vs Union of India, the Supreme Court ruled that sex with one's minor wife, who is below 18 years of age, would amount to rape despite her consent. Lord Mathew Hale, the 17th century Chief Justice of England, wrote in the 'History of the Pleas of the Crown': "The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife hath given up herself this kind unto her husband which she cannot retract."

Upholding the traditional and cultural history, matrimonial jurisprudence has approved that solemnisation of marriage shall mean the unconditional and lifetime consent to sexual acts by the wife. The 15th Law Commission headed by Justice BP Jeevan Reddy, in its 172nd Report captioned 'Review of Rape Laws' submitted in March 2000, denied to criminalise marital rape on the ground that it will be an excessive interference of law in marital lives of people. Further, the Parliamentary Standing Committee of Home Affairs, which examined the Criminal Law (Amendment) Bill, 2012, in the aftermath of the Delhi gang rape case, in its 167th Report in March 2013 did not recommend criminalisation of marital rape on the ground that it would have the "potential of destroying the sacred institution of marriage, which is based on mutual love and trust". In 2019, the Delhi High Court had turned down a petition seeking a declaration of marital rape as grounds for divorce. The Supreme Court, too, in the past refused to take up the issue, saying it is the domain of Parliament.

However, despite the above facts, the Kerala High Court gave a new twist to this issue which will have a significant impact on this sensitive matter. The Bench said: "Autonomy is now considered part of privacy and ennobled as a fundamental right." If bodily integrity is a violation of individual autonomy, then it contradicts the provisions of Section 375 of the IPC.

In contrast, the Chhattisgarh High Court on August 23, 2021, on a revision petition, discharged a 37-year-old man from the charge of matrimonial rape, saying that sex with a legally wedded wife is not rape under the IPC. The court, however, retained the charges of Section 377 for 'unnatural sex' and Section 498A for dowry demands. In his order, Justice NK Chandravanshi said: "In this case, the complainant is legally wedded wife of applicant no.1 (husband); therefore, sexual intercourse or any sexual act with her by the husband would not constitute an offence of rape, even if it was by force or against her wish."

The flip side of this version is that it is not only the nuptial duty of the wife to provide sex to her husband but, on the contrary, it is the primary duty of the husband also to provide the desired level of concupiscence to wife besides meeting her other needs such as protection, provisions, home and other domestic facilities. In many statutes applicable in India, 'impotence' of the husband is one of the major grounds for divorce sought by the wife. But frigidity, barrenness and adulterous ways of wives are not grounds for divorce by men. There do exist promiscuous women who say, "Yeh dil maange more". Will there be any law to prevent such acts?

(The writer is a legal journalist and author. The views expressed are personal.)