Manuraj Shunmuga sundaram Advocate interview – Reviewed By Advocate P.sanjai Gandhi Marital Rape has been a long-debated issue within the legal fraternity in India. While Rape, as an offence is recognized in the Indian Penal Code,

Manuraj Shunmuga sundaram Advocate interview – Reviewed By Advocate P.sanjai Gandhi

Marital Rape has been a long-debated issue within the legal fraternity in India. While Rape, as an offence is recognized in the Indian Penal Code, Martial rape continues to be an ‘exception’ to the said provision till date. After numerous cases and various committee recommendations, the question resonates – has the Parliament and the Judiciary lost opportunities for mending the provisions?
The Hindu Parley Podcast, a flagship podcast program of The Hindu, had a very broad discussion on ‘Why hasn’t Marital Rape been Criminalized Yet?’. The host for the Podcast was Ms. Sudipta Dutta who had two called upon two guests – Ms. Shraddha Chaudhary (Lecturer, Jindal Global Law School, PhD Candidate at Cambridge University) and Mr. Manuraj Shunmugasundaram (Advocate, Madras High Court, Spokesperson, DMK).
The first question posed by the host was regarding the loopholes in the provisions of IPC which allow Marital Rape to not be penalized and continued to ask the reason as to why such provisions still existed. Ms. Shraddha was prompt to answer the question, she led by stating that the provisions under IPC are largely gender oriented. While the act of penetration, without a valid consent is construed to be ‘Rape’, the question largely remains – why is marital rape, which is exactly what the definition of rape is, as exception? Ms. Shraddha stated that while Marital Rape does not constitute the offence of rape, it still constitutes cruelty and is a perfectly valid ground for divorce. Mr. Manuraj went ahead to answer another part of the question – how does such a provision even exist? Mr. Manuraj insighted that the Penal Code is a law that India ‘inherited’ from the Britishers. He stated that since the laws were formed back in the day, the makers of the law would not have anticipated that conflicts that might arise, in the future. He further described how the United Kingdom themselves did away with the law. In the year 1991, the house of Lords said that the provisions for Marital Rape as an exception to Rape was not acceptable and it cannot only be maintained by stating that the consent of wife upon marriage extends indefinitely to all sexual acts as well. Parallelly, with the passing of Sexual Offenders Act, 2003, Marital Rape became punishable. Additionally, Mr. Manuraj gave insight on how the Marital Rape has been criminalized in other countries as well. Mr. Manuraj then went ahead to reaffirm the submission made my Ms. Choudhary that Marital Rape, although not criminalized, is still cruelty and can still be a ground for Divorce.
The next question posed by the host was an important question – did the parliament and the judiciary loose opportunities with the recommendations of the Justice J.S. Verma Committee Report or is the process of implementing the law that is tedious and therefore isn’t allowing the passing of such a legislation? Ms. Choudhary led with her answer. According to Ms. Choudhary, while the judiciary has definitely taken efforts, it had not struck down the provision. She furthered her proposition by stating that while it is necessary, the Parliament is resistive to changes which entail no political benefit. Mr. Manuraj added up to the answer by Ms. Choudhary. He added that the parliament does have some limitations, but the limitations are only in the minds of the people. If the parliament did take the effort, it can definitely change these archaic laws. Mr. Manuraj reaffirmed that the Parliament definitely missed an opportunity with the Justice J.S Verma Committee’s recommendations. Further Mr. Manuraj also stated the central government’s response in saying that such provisions would require more deliberations was suggestive of the Parliaments resistance. Mr. Manuraj stated that this is seen as a vulnerable position of the Parliament where it is resistive of changes which do not carry significant political gain. Mr. Manuraj added to this the opportunities missed by the Judiciary in the case of Independent Thought v. Union of India. Mr. Manuraj was of the opinion that the courts could have taken inspiration along the lines of Navtej Singh Johar v. Union of India. But, in Independent Thought, the court was of the opinion that since no petition was placed before the court, it had nothing to do with the cause. Mr. Manuraj was of the opinion and that it was not ‘fair’ as the powers of the court under Article 142 of the Indian Constitution do allow it to intervene and make decisions where it feels there is a necessity – here the court should not have waited for individual petitioners and should have rather realized this as a constitutional issue and approached accordingly. Ms. Choudhary further reiterated that; a private members bill was in fact placed by parliamentarian Dr. Shashi Tharoor which was not passed – because it had no significant political advantage.
The host continued with an extension of the previous question – to what extent can these provisions (international) be relevant to the Indian scenario? Mr. Manuraj was prompt to answer and stated that since ‘Marriage is considered a sacrosanct institution’ in India, the general public will always be resistive to changes made to it. While there are no alternative remedies, the aggrieved parties can definitely file for divorce. Mr. Manuraj was of the opinion that the whole idea of sanctity of marriage needs to be challenged in way that Marital Rape is recognized as a crime. Ms. Choudhary added that the impact of application of such a law is also problematic considering that India is a largely patriarchal society. Further, she stated that diversity in practice might also be a problem in implementation of such a law.
The next question posed before that guest was – if reporting and prosecution of Marital Rape was any different from any other form of rape and if so how is it different? The question was directed to Mr. Manuraj. He stated that it was no different. He explained that since it was a crime ‘away from eyewitnesses’ it was rather difficult to lead evidence. Mr. Manuraj stated that the only legal fiction here is the established institution of Marriage – where it is considered that the consent of the wife is given once and for all. Mr. Manuraj stated that until consent is asked for at every moment, the institution will not change. He used POCSO as an example – the change in thought of the people that reporting of sexual offence is necessary, even when the offender is a family member, is something that has to be reflected in reporting of Marital Rape as well. Mr. Manuraj stated that people have to realize that defending marital rape is just as absurd as protecting of a family member in case of an offence under POCSO.
The final question placed by the host before the guests was – if patriarchal mindset and misogyny remained at the core of all problems and therefore prove to be a challenge? Mr. Manuraj took the dais. He stated that it was important that the societal mindset changed. The change should be in a manner where people start to logically question the institution of marriage. Further, the culture of Victim Blaming needs to stop and people need to challenge the conservative and traditional mindset in a logical and progressive fashion. Further Mr. Manuraj suggested a roadmap in which – rape needs to be framed as a crime against bodily integrity, emphasis has to be made on rights of the Individual and lastly consent needs to be paramount.

[This article is for spreading awareness among general public. Further, the article seeks to benefit law students and the legal fraternity. Source – ‘Why hasn’t marital rape been criminalised in India yet?’ The Hindu, 10th September 2021 (Chennai Edition) and ‘Why hasn’t marital rape been criminalised in India yet? | The Hindu Parley podcast, 9th September 2021, https://www.thehindu.com/podcast/why-hasnt-marital-rape-been-criminalised-in-india-yet-the-hindu-parley-podcast/article36385997.ece]

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