The State’s Ignorance Of Marital Rape Reveals How ‘Customs’ Are Valued More Than Consent

Posted on March 21, 2016 in Society

By Suvarna Bhattacharya:

A man holds a placard during a silent rally to protest against the rape of a photo journalist by five men in Mumbai August 25, 2013. Indian police have arrested all five suspects in connection with the gang-rape of a photo journalist in Mumbai last week, a senior official said on Sunday, in a case that has revived uncomfortable questions about women's safety. REUTERS/Danish Siddiqui (INDIA - Tags: CRIME LAW CIVIL UNREST) - RTX12W0M
Image credit: Reuters/Danish Siddiqui.

It is saddening to know that marital rape is still legal in India. The reason given for not criminalising it is even more distressing, and that is the Indian tradition and value system. The fact that custom is valued more than consent is enough to make us understand how far we are from realising real societal reform. In a country like ours where we are moving forward in terms of economic development, social development has taken a back seat. The question thus raised is, can we really ensure the growth of India if the mindset plaguing this country is not done away with?

Neither our judiciary nor our political parties have ever taken a tough stand on the issue of marital rape being treated as a criminal offense. The stance taken by Maneka Gandhi of the BJP is not new or unique to the party but is also shared by various other political parties. For example, after the Nirbhaya gang rape protests, the Congress-led UPA government appointed a three-member commission headed by Justice J.S. Verma to introduce necessary recommendations to deal with the malignant issue of sexual violence. The Commission had recommended criminalisation of marital rape but it was sadly ignored by the party back then.

If we take into consideration the institution of marriage in the Indian context, then, the position of a wife is always considered subordinate to that of her husband. Even though both the husband and the wife are expected to work towards ensuring spiritual and sexual gratification together, the wife always has to occupy the position below that of her husband’s. Marriage is considered a sacrament wherein a wife submits herself to the will of the husband. Sex becomes a right for the husband and he has every right to demand it from his wife irrespective of whether the partner is willing or not. These customs may have made sense when they had taken birth but can we justify the same practice in the present context? They may not make sense to me and numerous people reading this article but they still do to a major chunk of our Indian population.

Leaving aside the traditional beliefs, a typical misconception that also tends to harm the society as a whole is that men are naturally inclined to sexual gratification hence it is very natural for them to be overtly demanding of the same. It totally chooses to ignore the fact that females too are creations of nature just like males are and that they too have sexual needs. It also encourages men to go to any extent imaginable, or unimaginable, to meet their sexual needs and assert their power and dominance over their female counterparts.

According to a survey conducted by the United Nations in the year 2013, a quarter of 100,000 men from the Asia Pacific region including India admitted to having forced sexual intercourse upon their wives since they felt they were entitled to it. Similarly, another survey by the National Family and Health Survey revealed that 93% of women who faced sexual abuse admitted to having been raped by their current or former husbands. What is even more alarming is the fact that less than 1% of these women decided to file a police complaint against their spouses. And even if they did, it is a known fact that they could not have demanded criminal prosecution on the grounds of marital rape simply because our legal system does not treat rape by husbands as rape.

Despite stories coming out into the open that wives died during violent acts of sex being forced upon them, insertion of foreign objects into their vaginas and so on and so forth, no concrete step has been taken to ensure that this gargantuan malevolence is curbed.

Many are of the view that if at all marital rape is treated as a criminal offense, it will be misused by many just like section 498A of the Indian Penal Code is. Another argument put forward by many, quite foolish to be taken into consideration, is that rape by a husband will be difficult or impossible to prove. For the latter argument, many experts have argued that rape by the husband can be proven just the way any other case of rape is proven. As far as the former argument is concerned, just because certain laws are misused by a certain section of the population, does it mean marital rape should not be treated as a criminal act at all? Shouldn’t an innocent victim of sexual abuse expect judicial relief from an abusive relationship? People who are responsible for the efficient running of this country should take solid measures to ensure both judicial as well as societal reform.

In conclusion, all I would like to do is quote Ambedkar to further strengthen my argument. “Rights are protected not by law but by the social and moral conscience of society… if fundamental rights are opposed by the community, no Law, no Parliament, no judiciary, can guarantee them in the real sense of the word.”