Open letter to court against Marital Rape

1. Sex in marriage is implied and expected. If a husband can force himself on the wife, then since both are staying together all the time, there will be times when the wife will be forcing herself on the husband. If your core argument is on art 14 (equality before law) and art 21 (right to live with dignity), then by treating violation of wife as crime without providing equal right to husband to seek remedy, it is violating art 14 and art 21 for the husband.
   
   
2. S 375 is only for women because IPC itself is almost 150 years old when women mostly stayed inside the home and men were outside. The chances of a woman attacking a stranger man were so low that lawmakers found it fine to quickly provide remedy only to women.
   When we talk of dynamics inside home, both man and woman are staying together. It is understood that there will be times when woman would want to have sex (unless you want to argue that sexual desires and needs of a woman does not exist and it only exists in man) when a man is not interested and there will be times when reverse would be true.
   It is also given that when a man and woman gets married, a special relationship, bond and understanding develops which leads to marriage and cohabitation after marriage. Also, it's expected that they will have sex regularly and in fact, the phrase "first night of couple" is synonymous with "having sex for the first time."
   This is very different from the intent of S 375 where only women can be victims.
   In the domestic case, there's equal probability of both genders asking or forcing sex without the interest of other. So, you cannot remove the immunity given to the husband without removing the word 'woman' in S 375. You will also need to replace it with 'any person'. When you do that, all the case laws, punishment and other parts of S 375/376 would be disputed...
   
   
3. As I see it, sexual violence is already covered in DV act and there's a need to make DV act gender neutral.
   
   
4. Also, we cannot ignore the social impact of such provision which creates mistrust in a sacred relationship, bringing weapons of criminal law into a relationship of love.  This is not a simple matter of removing exception. We are looking to drill the foot of mountain without caring about complexities and problem it can bring along. The mountain can fall on us. By mountain, the reference is to whole social fabric of country.
   
   
5. Today when woman reports rape, a critical aspect is whether the woman knew that person, whether they had any sexual chats and whether mens Rea existed to commit the crime. In case of husband's, the couple already had sex a lot of times. There's so much spontaneity and chemical reactions when the two are together, that's how kids are born. To treat it with regular heinous criminal offense and bringing need for consent is an ill-motive move and an attack on my country.
   
   
6. Also, if we are trying to be idealistic, let's also not look away from the issue of false cases by disgruntled wives looking to harass husbands. Milord also need to tell the standard of proof and the method and procedures for recording of clear consent and introduce section for punishment for false cases right as well compensation to the affected under S 376 because all of us know how common misuse sections like 182 etc (X, XI of IPC) have zero usability.
   It is pertinent to note here that we cannot look away from false cases while creating more laws, introducing complexities in laws by saying which law is not misused? The first goal of jurisprudence is to ensure no innocent will be punished and if there's a clear way to achieve that and without violating art 14 and 21 of husbands', then please go ahead.
   Also, let me know if you need the long list of false rape cases being reported in our country by strangers, be it Ayushi Bhatia case, or so many other. Few examples are available here
   
   
7. Also, sorry to say it, I know this law is being pushed because it will make windfall for advocates but advocates should not earn their livelihood out of the misery of people and by selling the country IMHO. The settlements in matrimonial matters, the share of matrimonial matters in total cases and the false allegations/exaggerations are well known. Provide free advocates and stop any monetary settlements, and all these protectors of human rights with high conscience would disappear in seconds.