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This extract from a foreign judgement was endorsed by the Justice J S Verma committee in its report as it said that marriage or any other intimate relationship between a man and a woman is "not a valid" defence against sexual crimes like rape.
The three-member panel, which was constituted to recommend amendments to criminal laws in the wake of the national outrage over the December 16 gangrape here, has sought "an exception for the definition of marital rape in the existing laws".
"The law ought to specify that a marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation," the committee recommended yesterday in its report to the government.
The committee also prescribed that the "relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity and the fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape."
The panel relied heavily on the judgements made by courts in various countries.
"Our view is supported by the judgement of the European Commission of Human Rights in C.R. v UK, which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim," the 630-page report said, slamming the prevailing notions on this subject.
"The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands.
"According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked," the committee said.
With such recommendations the government should now order a commission to write another "kamasutra" (name may also be decided by a third commission) which should explain how marital sex can be undertaken and only if sex is performed as per this manual will it stand correct in the eyes of law.
Disclaimer: I haven't read the Justice Verma Report.. However, with the various excerpts that are coming out in print, air or screen, it seems that this report could have been better prepared by surveying, interviewing and mapping the pattern of rape in India rather than sitting in air cooled/warmed offices in Delhi. The ads that appeared in various newspapers for sending views and recommendations, frowning upon DGPs and higher officials is not the way to go to prepare such reports. Banking on European courts where the society is different than ours is not the solution, does the report also recommend to improve the justice delivery system and make it efficient as it is in Europe. After DV Act 2005 and 498 A, a woman will now also allege rape, have these aspects been examined? Will a false case be punished with same severity as it will take years for a man to clear his name and how will the stigma be removed in such situations? It needs a more holistic and broad based approach.
Sex is marriage or a consented relationship of any form cannot be defined by law. Islamic countries also have immense problem in administrating the proposition of sexual relationship. However Justice Verma quoting outdated laws of the West where promiscuity is rampant and at will consensual sex can be termed as rape (inclduing date rape) by the woman (both hetro- and homo-sexual). One has to defined rape first and then seek a resolutuion. Law can be a recourse in the extreme cases where sex is the outcome of violence. Beyond that I am not sure how law can define an act of love and contrast it with rape.
