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Centre says marital rape not a crime as marriage is sacrosanct in India, activists cry foul

India is split down the middle and the Union Home Ministry is under fire for its remark that the concept of marital rape cannot be applied in India as marriage is treated sacred in the country.

Upping the ante against marital rape, DMK MP Kanimozhi said that it should be criminalised. “All Parliamentarians should come together on this issue. There should be a debate and India should amend its regressive laws. Marital rape should be criminalised. Our laws are obsolete.”

The Home Ministry remarks came after Kanimozhi cited a United Nation estimate that 75 per cent of the married women in India are subjected to marital rape.

Even though there have been massive protests against rape all over the country in the last few years, the stand taken by the Home Ministry on married women being forced by their husbands to have sexual relationship with them against their will is seen as a regressive step. It sends out a message that the government considers illiteracy, poverty and the sacrament of marriage more precious than the protection and safety of the women.

“There should be no limits on a woman’s freedom. Women must have right to oppose force even from husband,” said Delhi Women Commission Chairperson Barkha Singh.

The issue was discussed in the Rajya Sabha on Wednesday when Kanimozhi raised it and asked a written question on the topic. Replying to Kanimozi, Minister of State for Home Affairs Haribhai Parthibhai Chaudhary said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”

Hitting out at Chaudhary, former Additional Solicitor General Indira Jaising said, “There is a need to amend the law. Rape is rape. The reason cited by the minister is incorrect and wrong.”

In fact even the judiciary is of the view that a husband can have forced sex with his wife. The Delhi High Court in February 2015 refused to entertain a PIL challenging a provision in the penal law which does not consider rape as the sexual intercourse of a man with his wife who is a minor noting that a similar matter has been junked by the apex court.

A bench headed by Chief Justice G Rohini and Justice RS Endlaw dismissed as withdrawn the plea of an NGO highlighting the exception in Section 375 of the IPC which states that sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape.

“Similar matter has been dismissed by the Supreme Court. We don’t see anything into this petition,” the bench said after which the NGO withdrew its plea.

Rit Foundation had submitted that the exception in section 375 was brought by way of the Criminal Law Amendment Act of 2013, which was enacted after the horrific gangrape case of December 16, 2012.

In its petition, it had claimed that the exception to Section 375 of the IPC was to the extent that it grants immunity to a husband by raping his own wife, who is above age of 15 years, was unconstitutional.

It submitted that the exception was “unconstitutional and violative of the Right to Equality guaranteed to married women under Article 14 of the Constitution as it decriminalises rape when the perpetrator is the lawfully wedded husband of the victim.”

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