The Crime That Can’t Be

Madhavankutty Pillai has no specialisations whatsoever. He is among the last of the generalists. And also Open chief of bureau, Mumbai  
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Why former CJI Dipak Misra’s take on marital rape not being made an offence is erroneous

IT IS COMMON knowledge that a large proportion of child sexual abuse happens within families. Imagine now such a case. A mother finds out that the father is sexually abusing their child and goes to the police station to report it. The officer believes her but says he can’t take action because child abuse laws specifically exempt family members from prosecution because Indian society has decided preserving the institution of the family is more important. Raping a child is not a crime if a father does it. That is not how it is in the real world; the Protection of Children from Sexual Offences (POCSO) Act puts all child rapists—fathers included—in jail.

You could, however, still ask former Chief Justice of India Dipak Misra why his logic that marital rape should not be made an offence because it is dangerous to Indian family values cannot be extended to all crimes, including child abuse, within families. A Times of India report on Misra’s talk at a public event quoted him saying marital rape as an offence would be a needless import. ‘Because some country has made marital rape an offence… I don’t think it should be regarded as an offence inIndia. In villages, it will create absolute anarchy in many families. Our country is sustaining because of the familyplatform. We still have family values... We still respect the family background and many other facets,’ he said.

There is some ignorance of worldly affairs here. Nothing special marks out Indian family values, except perhaps Bollywood making a lot of money off it. Most societies set as much store on family as India. In the United States, presidential campaigns touting family values have been a mainstay for decades. The thing to ponder over is why do other countries regard marital rape as an offence? The answer is not too difficult to get at. Rape by anyone is a self-evident crime. Because marriages are predicated on sex does not make rape a part of the deal. Why make domestic violence an offence either then, as it is in India? You can’t beat your wife but you can rape her is a somewhat strange position to take.

Making marital rape an offence will certainly lead to some unsalutary consequences. We know that from the Indian experience with dowry laws, whose draconian provisions were gamed by lawyers to be used in divorce proceedings to eke out better settlements. But that didn’t mean dowry killings weren’t real or not a crime. A law on marital rape can and will be used as a bargaining chip in divorces but it does nothing to negate the fundamental reason to enforce it. You could learn from experience and have deterrents against false complaints. Or not skew it in such a manner that husbands are treated guilty merely on accusation. Or you could just let the system sort it out over time, as it does with almost every law in India.

What is absurd is to make a crime not a crime because of the fear of disruption and doing this shielding behind mythical labels like family values. To not consider marital rape an offence is to say that women wrote their body off with their marriage.