Prabhakar Sinha
It is a very serious, sensitive and delicate subject on which no opinion should be formed and expressed without due deliberation of all of its the pros and cons .I have not gone into the merit of the demand to criminalise marital rape and do not consider myself sufficiently qualified to support or oppose it .I also believe that those who have been demanding its criminalisation know what they are doing and have no vested interest in pursuing their goal.
However, if the demand is going to be conceded and a law going to be enacted, the law makers should make sure that the law is just, fair and reasonable .A just, fair and reasonable law ensures that the guilty seldom go unpunished and the innocent seldom get trapped and convicted .It is particularly important in a country where filing false cases both by the State as well as the people is a common practice .And we are one such country.
It appears to me that any law to criminalise marital rape should pay attention to at least two very important points (there may be many more of which a layman like me may not be aware) .Firstly, marital rape should not be treated on the same footing as rape by a stranger with or without use of force or any other means. Rape by a husband is an inhuman way of exercising his right as a husband for which he should be punished, but it is different from the rape committed by a person who is not the husband of the victim .Additionally, to set the wife free from the clutches of such an inhuman husband, it should be made a ground for the wife to get a divorce.
Secondly, the law should have a fool proof safeguard to save the husband from false cases .In the case of a marital rape ( unlike the rape in general ), the wife does not have to prove anything since sexual intercourse would not be in dispute ,and it would be enough for the wife to just complain that her husband forced himself on her despite her unwillingness and opposition to get him convicted. If no effective safeguard is built in the law , then a wife's accusation alone would be sufficient for the conviction of the husband. No law can pass the test of being fair, just and reasonable which leaves the accused 'defenceless' and does not safeguard the innocent against unjust conviction and miscarriage of justice.
This aspect must be paid special attention because neither our law makers are known for paying attention to providing effective safeguard against victimisation of innocent persons by malicious use of a law nor the State and others known for qualm of conscience against making a malicious use any law. Since this law has the potential to affect every married couple and every home, its enactment needs utmost care to prevent miscarriage of justice and its large scale misuse .
