The importance of consent for every individual decision cannot be
over emphasized. A woman can protect her right to life and liberty, but
not her body, within her marriage, which is just ironical. Women so far
have had recourse only to section 498-A of the IPC, dealing with
cruelty, to protect themselves against “perverse sexual conduct by the
husband”. But, where is the standard of measure or interpretation for
the courts, of ‘perversion’ or ‘unnatural’, the definitions within
intimate spousal relations? Is excessive demand for sex perverse? Isn’t
consent a sine qua non? Is marriage a license to rape? There is no
answer, because the judiciary and the legislature have been silent.
The 172nd Law Commission report had made the following recommendations for substantial change in the law with regard to rape.
- ‘Rape’ should be replaced by the term ‘sexual assault’.
- ‘Sexual intercourse as contained in section 375 of IPC should include all forms of penetration such as penile/vaginal, penile/oral, finger/vaginal, finger/anal and object/vaginal.
- In the light of Sakshi v. Union of India and Others [2004 (5) SCC 518], ‘sexual assault on any part of the body should be construed as rape.
- Rape laws should be made gender neutral as custodial rape of young boys has been neglected by law.
- A new offence, namely section 376E with the title ‘unlawful sexual conduct’ should be created.
- Section 509 of the IPC was also sought to be amended, providing higher punishment where the offence set out in the said section is committed with sexual intent.
- Marital rape: explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence. On the same reasoning, section 376 A was to be deleted.
- Under the Indian Evidence Act (IEA), when alleged that a victim consented to the sexual act and it is denied, the court shall presume it to be so.
Hindu Marriage Law
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Email: hindu.marriage@ozg.co.in
