The order of the court was released on Wednesday.
The court has also said that it is ironical that we often tend to treat such a woman or a wife who speaks out against any sexual perversities as a suspect.
Kamini Lau, the Additional Sessions Judge in the court, has said that the non-recognition of marital rape in a country that is set upon a bedrock of equality is a gross hypocrisy and double standards in the law, which is central to the subjugation and the subordination of women, and thus there is a need for addressing the issue by the statutory law and also as judicial pronouncement.
Saying that the legal system’s reluctance at recognizing marital rape as a crime and then prosecute expect in any extreme case is a massive problem, Lau said that it is more worrisome that when it comes to marital rape and sexual acts in a marriage, the society either visualizes it as a matter that was provoked by the wife who refused to perform her duties, or it accepts it as something that is normal, and looks the other way,
The court then said that it is unfortunate that in India, we are yet to recognize the woman’s right in controlling marital intercourse as core component of equality.
It also observed that the allegation that had been leveled by the victim was correct, since she is the best witness in the matter, and had been married to the accused just eight months ago.
The court then said that there seems to be something seriously wrong with both the accused as well as the society, with sexual perversity prevalent in the system where lakhs of women are suffering this sort of sexual violence in silence.
It then stressed that the critical need for the hour is the serious recognition of the problem, and addressing it, observing that when a man forces himself on a woman sexually, even if he has a license by marriage to do it or not, it should be counted as rape.
It also added that the woman had the full autonomy over her body, and that the recognition of marital rape and raising our voice against it is the first vital step in achieving a substantial equality between a man and a woman.
It is unfortunate that we in India are yet to recognize woman’s right to control marital intercourse as a core component of equality,” said Additional Sessions Judge Kamini Lau, adding that the shortfall in law was “gross violation of the acknowledgment of a women’s right of self-determination i.e. control on all matters relating to her body and Criminalisation of marital rape.”
The court’s observations came while rejecting the bail application of a Delhi resident, Praveen Arora, accused of sodomising his wife. Arora had requested the court to grant him bail on the ground that the incident took place in a marriage, making it a spousal rape, which is not recognized under the law.
Throwing out his bail application, court said it could not allow him to get away with such “perverse actions”, which had caused “physical and psychological damage to the a young girl who was married for only eight months on account of this abusive relationship”.
Activists and lawyers agree with Justice Lau.
“A lot of violence exists in marriages, mostly in the form of spousal rape,” said senior advocate Meenakshi Arora, who is best known as the lawyer who propelled forward the groundbreaking Vishakha guidelines in the Supreme Court.
“We need to criminalise this so that the victims have a name for what they go through, so they have somewhere to turn to when they’ve been wronged,” she added.
In March this year, Parliament rejected the Verma Committee’s proposal to criminalise marital rape. A panel of lawmakers said the proposed marital rape law “has the potential of destroying the institution of marriage”.
Women’s rights activist Kalpana Vishwanath believes the decision could be attributed to “patriarchal anxiety that stops people from taking it up as a serious issue.”
According to the United Nations Population Fund, marital rape is the most common form of violence against women in India. Two-thirds of married Indian women surveyed by the UN said their husbands had forced them to have sex on numerous occasions.