A recent report by a government-appointed panel recommending marital rape to be made an offence has again given impetus to the demand for criminalising forced intercourse within marriage.

With the issue repeatedly cropping up, it is high time that the government realises it cannot foreclose the debate by harping on marriage being a sacrament. The problem of rape within marriage is real. To express helplessness in offering a solution after acknowledging the problem is close to justifying it.

Not much before this recommendation coming from within, the government cited illiteracy, culture, values and marriage being considered a sacrament in India as grounds for rejecting a recommendation on this aspect from a UN body.

The government will commit the same mistake if it does not cross the barriers of culture and values to take the discourse to the next level in a bid to look for a solution.

In the backdrop of the recommendation by the UN Committee on Elimination of Discrimination Against Women seeking criminalisation of marital rape, the government told Parliament it was not in favour of introducing marital rape in the penal code. The reasons were as usual.

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament,” minister of state for home Haribhai Parathibhai Chaudhary reportedly said. Ironically, the government cited poverty, social customs and "values" for allowing husbands to rape their wives.

The dominant conservative view is that any attempt to criminalise marital rape would threaten the institution of marriage. Ironically, even law commissions have dealt with the subject superficially. The 172nd Law Commission Report, brushed aside the proposal as “excessive interference with marital relationship”.

It would be wrong to assume bedrooms of matrimonial homes were impenetrable to reform. There is a provision in the IPC which provides for prosecution of a husband for rape if he has intercourse with his wife who is under 15 years of age. This age has been increased a number of times without protest. There is another provision allowing prosecution of a husband raping his wife during judicial separation or when she is living separately on account of any custom or usage. Further, the impenetrable bedroom argument defies logic with sexual assaults of the nature of rape being punishable under section 498A of IPC (only because it is not rape!) and is recognised by the law against domestic violence.

Have these developments destroyed the institution of marriage? The concerns against immunity to husbands cannot be brushed aside in the name of a custom which is unjust to half the population. No victim of crime should be left remediless. Walking out of marriage by seeking divorce is no remedy for sexual assault. To begin with, the government could carve out a separate provision for penalising matrimonial rapes. A criminal act should not be met with civil consequences.

True, including marital rape in the ambit of rape would pose serious practical problems but solutions can be found only if the government feels that thinking beyond "marriage as a sacrament" was not a taboo.

The criminalisation of rape in marriage would pose difficulties in proving the charge; in arriving at an adequate sentence; and in guarding against false charges triggered by breakdown of relationships as in the case of section 498A. Besides, it could also affect the evidentiary value attached to the statement of a victim, the gravity with which society sees the offence of rape and the possibility of settlement which is common in matrimonial disputes.

The difficulties are manifold but one needs to get into a debate to look for solutions to a serious issue.