Recognition of marital rape as an actual and actionable offence is an important step in the evolution of India’s criminal jurisprudence says Niharika Karajawala, Principal Associate, Karanjawala & Co
Recognition of marital rape as an actual and actionable offence is an important step in the evolution of India’s criminal jurisprudence. True consent, by it’s very nature must be consent given in the moment, under the prevailing circumstances, by each party involved, and to the act in question; the idea that the fact of marriage itself grants blanket consent for any sexual act in any circumstances, renders it effectively meaningless to either party in a marriage.
The Courts are, furthermore, well poised to deal with difficulties such as nature of evidence and potential for misuse - emotional and mental cruelty, neither of which would leave evidence of physical damage and both of which would have to be determined by weighing testimony, are recognised and actionable as offences in a marriage. Finally, with regards to the potential for misuse, the law has provided safeguards such as protection from immediate arrest and prosecution for individuals filing false complaints, as deterrents against misuse of other penal offences, which can be considered in the case of marital rape as well, in order to allay fears of misuse. Keeping all this in mind, the continued viewing of marital rape as an exception to the law of rape leaves a significant lacuna in our penal code. While it is disappointing that the issue was not determined once and for all by the Hon’ble Delhi High Court, it is heartening that, despite a split of opinion, both the Hon’ble Judges concurred that the issue is one involving substantial questions of law and ought to be considered by the Apex Court.