Irrespective of court judgments, women still need to fight for justice and are often denied it
Offences against women show no signs of abating and they sometimes get no relief even from the courts. The latest instance is of the Chhattisgarh High Court discharging a man from the charge of marital rape because the court relied upon an exception under Section 375 of the Indian Penal Code that “sexual intercourse or sexual act by a man with his own wife, the wife not being under 15 years of age, is not rape”. Marital rape has been criminalised by over 150 countries but India is not among them. Some women NGOs term marital rape as the single biggest crime women face with “one in three men admitting to raping their wives, and one Indian woman raped by her husband every three seconds”. The Centre argued in 2017 that “what may appear to be marital rape to an individual wife, it may not appear so to others”. Former CJI Dipak Mishra in April 2019 went on record defending it “because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values”. Not all courts, however, have backed this view. In a 2018 judgment of the Gujarat High Court, a single Bench of Justice JB Pardiwala said: “I wonder how BR Ambedkar would have seen the present-day scenario when no one is willing to even discuss to reform the criminalisation of marital rape. A law that does not give married and unmarried women equal protection creates conditions that lead to the marital rape.”
At a time when women are allowed to take the National Defence Academy examination and a gender balance in the higher judiciary is becoming a reality, the Government and the courts should strive to criminalise marital rape. A woman, irrespective of her married status, has the right to choose the person with whom to have sexual relations and when. There is a bigger issue involved here. It is about a society determined to deny women their rights even though the Constitution guarantees gender equality and neutrality. More often than not, direct intervention by the courts has had to enforce women’s rights that are already theirs. There is now a well-endowed gender jurisprudence available to ensure women are not discriminated against. Yet, some court observations defy logic and do not help the women’s cause at all. For example, the judgment of the Nagpur Bench that groping a minor girl without “skin to skin, direct physical contact” cannot be categorised as sexual assault. Or, the Gauhati High Court granting bail to a rape accused because he is “a talented, young student and a future asset to the State of Assam”. A trial court in Rajasthan in the 1995 Bhanwari Devi case even observed “an upper caste man could not have defiled himself by raping a lower caste woman”. These instances force the progressive jurisprudence of the Indian judiciary to regrettably take a step backward.