How Politicians Dodged the Issue of Marital Rape for Years, but Ball Now in Supreme Court for 2023

“If the marital rape is brought under the law, the entire family system will be under great stress…,” said a Parliamentary standing committee comprising politicians from all hues, nine years ago. This effectively shut out a recommendation from the Justice Verma Commission to criminalise marital rape in India, after the Nirbhaya gang-rape case that had shocked the entire nation.

“Drastic crimes are the worst time to bring strong laws as they are not thought out,” a senior minister then told this correspondent, explaining the near unanimity in the Parliament to not criminalise marital rape then. Nine years since, a split verdict in the Delhi High Court recently on the issue and amidst a wait for the Supreme Court to hear an appeal next year, a Chief Justice Bench in SC on Thursday finally recognised marital rape – albeit in the limited context of the Medical Termination of Pregnancy (MTP) Act.

What impact Thursday’s development will have on the main case in the top court around the criminality of marital rape remains unclear. But what is apparent is the unwillingness of politicians both in the Congress and the BJP camp to bite the bullet on this one – and push the ball towards court.

How Politicians have Dithered

Much commotion was caused in political circles after a Parliamentary Standing Committee, headed in 2013 by then minister Venkaiah Naidu after the Justice Verma report quoted laws from three countries and a judgment of the European Commission of Human Rights, proposed making marital rape a criminal offence with a jail sentence of 10 years. Wife is not the property of the husband and she can revoke the consent given at the time of marriage for intercourse, the committee opined. The committee, which had Congress MPs too, recommended against it, saying “the Committee may perhaps be doing more injustice,” by making marital rape an offence.

Since 2014, after the BJP came to power, the government took a stand in Parliament that poverty and the concept of marriage being sacred are reasons why marital rape cannot be made an offence. Then, a writ was filed by the RIT foundation in 2015 in the High Court of Delhi against the government on the issue of marital rape. Since then, the government took the line that the matter of marital rape is sub judice and it can take no decision.

All this has happened while constitutional bodies have also been in a bind on the issue. While commenting on the Draft National Policy for Women, 2016, the National Commission for Women has made certain recommendations on marital rape. The Centre had also requested the Law Commission to deliberate upon the marital rape issue during the course of its comprehensive review of Criminal Justice System. The 172nd Law Commission Report submitted in 2000 did not recommend marital rape.

Wait for 2023

The Delhi High Court on May 11 this year, after reserving a judgment for almost three months, delivered a split verdict on the issue of marital rape and gave the liberty to the parties to file an appeal. A fortnight ago, on an appeal filed before it, the Supreme Court issued notices and said it will hear the matter in February 2023.

Will the SC bench in question now take a cue from the CJI-led bench’s decision on the larger issue of marital rape after the same being recognised in terms of the right of women to get an abortion? The wait is still on over 162 years after the IPC was enacted.

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