IF YOU CAN get arrested for punching your wife, then raping her has to be much worse in the order of criminal actions. This should be self-evident to every institution, from the judiciary to the executive, that has a say in the matter. And chances are many people in there agree. It is very difficult in today’s times to argue, even to oneself, that raping anyone, even your wife, should not lead to jail. Yet, it comes as no surprise that a bench of the Delhi High Court couldn’t agree on whether to remove the exception in the Indian Penal Code that allows a husband to rape his wife. Of the two judges, one was for and the other against, their arguments mirroring the divide between progressives and conservatives. As the Indian Express reported: “While one judge said “legitimate expectation of sex” is an “inexorable” aspect of marriage, the other said the “right to withdraw consent at any given point in time forms the core of the woman’s right to life and liberty”.”
Marital rape’s decriminalisation is also complicated for other reasons. Rape laws in India, especially after Nirbhaya, are draconian in nature. Whether that is warranted or does any real good for conviction is a subject of another debate but it is what it is. The onus of proving innocence leans on the accused because the sole testimony of the victim has greater weight. This skewed balance might even be necessary but when such a law is used in a marital relation, an entirely new can of worms opens up. No one has any doubt that lawyers will game it in divorce proceedings because they have already shown it with Section 498A, the anti-dowry law. The reason they do so is because the judicial system is so rusty that divorce proceedings can drag on interminably. Such laws are useful to quickly get husbands to the negotiation table and settle the case. Unless divorces get speedy resolution, this will continue. But is it possible to fast-track just divorce cases when the rest of the judiciary moves slower than a snail? What special reason can there be to do so? And can you fix the entire judicial process just so that divorces become fast? If India could do it, it would have done it already.
A legitimate reason for the judiciary tiptoeing around marital rape is because laws ought to be made by the legislature. If there is an exception to marital rape in the IPC, then the body that put it there must also remove it—Parliament. That is, in theory, the only way to do it because then the end result is arrived at by long deliberation across society, a process moderated by people elected precisely for this role. If the judiciary were to bring a new crime into existence, then it is by the opinion of a few men and what are the odds of them being able to calculate all the second-degree effects and come up with safety nets to them. A beginning is to first acknowledge marital rape is a crime. To jump headfirst into punishment is only going to lead to more passing the parcel. To ask judges to make the law is to admit that Parliament is of no use. That might be true but then why persevere with elections either?