Amendments to Criminal Laws

• IAS NEXT, Lucknow
• 04, Feb 2022

Reference News:-

The Government has informed the Rajya Sabha that it has started the process of comprehensive amendments to criminal laws.

• This information was given in Lok Sabha by the Government in response to a question on marital rape (on whether the Centre had taken a position on inclusion of marital rape as an offence under the Indian Penal Code).

Criminalisation of marital rape:

Please note that the Delhi High Court is hearing a clutch of petitions seeking criminalisation of marital rape.

• The Centre has already sought more time to formulate its stand on the ground that the issue needed wider consultations.
• The petitions have sought striking down exception to Section 375 of the IPC, which says forceful sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape.

Section 375 of the Indian Penal Code:

It exempts forceful sexual intercourse by a man with his own wife from the offence of rape, provided the wife is above 15 years of age, also known as the “marital rape exception”.

 NFHS Findings:

• 7% of ever-married women experienced spousal sexual violence.
• Among ever-married women aged 15-49 who have ever experienced sexual violence, 83% report their current husband and 9% report a former husband as perpetrators.

 What’s the issue now wet marital rape exception?

Though the government has said on multiple occasions that criminalising marital rape will threaten the institution of marriage, experts say recent judgments, including on the right to privacy, have rendered this argument untenable.

Recent judgments that question the government’s stand on this:

• Independent Thought vs. Union of India verdict of October 2017, in which the Supreme Court criminalised rape with a minor wife.
• The Justice S. Puttaswamy vs. Union of India (September 2018) case, where the apex court unanimously recognised the fundamental right to privacy of every individual guaranteed by the Constitution.
• The Joseph Shine vs. Union of India case of October 2018, where a five-judge Bench of the SC struck down adultery as a crime.

Recourse available to the victims of marital rape:

Victims only have recourse to civil remedies provided under the Protection of Women from Domestic Violence Act, 2005.

Criminalisation of Marital Rape is necessary because:

1. There are several studies to show the prevalence of non-consensual sex with their wives, and physically forcing their wives to have sex.
2. Marriage is an equal-relationship contract and not a one-time consent to everything.
3. The legal exception to the rape laws gives men unequal privilege.
4. Marital rape victims suffer from long-lasting psychological scars.
5. Exception under Section 375, violates Articles 14, 15, 19 and 21 of a woman.
6. The patriarchal nature of Indian society, ingrains it in the minds of men that women are expected to comply when their husbands demand sex.
7. The victim suffers physical abuse, and she also has to undergo mental trauma of her dignity being violated.

Cons of criminalizing marital rape:

• It “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.
• “Rising misuse of Section 498A of IPC”, known as the dowry law, “for harassing the husbands”.
• Other countries, mostly western, have criminalised marital rape does not necessarily mean India should also follow them blindly.
• Law Commission on Review of Rape Laws has examined the issue but not recommended the criminalisation of marital rape.
• What may appear to be marital rape to an individual wife, it may not appear so to others.
• There can be no lasting evidence in case of sexual acts between a man and his own wife.

Committee For Reform In Criminal Law:

The Ministry of Home Affairs (MHA) has constituted a national level committee for reform in criminal law.

• The committee has been constituted under Ranbir Singh and several other members.
• The committee would be gathering opinions online by consulting with experts and collating material for their report to the government.

 Previous committees:

Madhav Menon Committee: It submitted its report in 2007, suggesting various recommendations on reforms in the Criminal Justice System of India (CJSI).

Malimath Committee Report: It submitted its report in 2003 on the Criminal Justice System of India (CJSI).