By Shreya Mohapatra:
Last year, the government shocked the nation when in response to a question posed by DMK Minister, Kanimozhi, the Minister of State for Home Affairs had said, “the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.” The government has effectively subscribed to the archaic ideology that a woman is a man’s property by making a repugnant argument when Minister of Women and Child Development Maneka Gandhi said, “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 the level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, and mindset of the society to treat marriage as a sacrament.”
It’s still an issue which is discussed regularly and it is necessary to understand its nuances.
The current law on marital rape is severely problematic. Marital rape is an offence under Section 376B of the Indian Penal Code when the husband and the wife are living separately, even though married to each other. A man can be accused of rape for having sexual intercourse with his wife if she is below 15 years of age. This contradicts the law that sets both the age of consent for having sex and the legal age for marriage at 18.
As far as the stand of the government is concerned, it believes that lack of education, poverty, myriad social customs and values and religious beliefs exonerate rape. This is certainly out of the ordinary. Is the government trying to suggest that rape is not prevalent in rich, educated and middle-class homes? If yes, a reality check is certainly required. As Colin Gonsalves (2015), puts it, in tiny little Nepal which is so similar to India in terms of poverty, illiteracy, culture, etc, marital rape is a criminal offence. Bhutan, which is even tinier, also criminalises marital rape. The Indian society may consider marriage to be sacrosanct. But if marriage is indeed so sacred, can rape and violence be a part of this institution?
Violence within a matrimonial relationship may include verbal, physical, emotional and mental abuse. But in India, where rape is accompanied by a culture of shame, dishonour and silence, women are conditioned to put up with such torment. They often do not disclose the abuse being perpetrated upon them by their husbands.
Destruction of the fabric of family life and misuse of the law are the unsubstantiated reasons which a criminal lawyer has given for opposing criminalisation of marital rape. The government had expressed fears in relation to Section 498A which was introduced into the Indian Penal Code in 1983 and criminalised violence against married women. Aside from the insensitivity and distaste in these remarks, there is also a lack of common logic. A large number of acquittals do not necessarily point towards registration of false cases. It could also be a case of a poor investigation and pressure on women to withdraw cases. As far as proof is concerned, sexual abuse is seldom carried out in separation. It is almost always accompanied by other forms of physical and verbal abuse which may include forced abortions or forcing the spouse to form an intimate relationship with other men. Evidential complications may arise and therefore, a comprehensive understanding of the law is imperative. However, not having a law at all based on unfounded arguments seems illogical. As Vrinda Grover (2015) puts it, ”Whenever there is a movement to increase a woman’s access to justice, people who are afraid of women being empowered start talking about the misuse of law.”
Those who argue that the Protection of Women from Domestic Violence Act, 2005 is sufficient, miss the fact that although forced sex is a form of domestic violence covered under the Domestic Violence Act; it only provides civil remedy to rape and hence, is not suitable for women who want to press criminal charges against their husbands. Flavia Agnes highlights yet another bitter truth. She says, “Even Supreme Court judges make callous and unsubstantiated comments such as S498A is a ‘terrorist law’ through which women hold their husbands to ransom.”
Rape is one of the means to maintain the social hierarchy of power relationships. It is a weapon wielded to terrorise women in class, caste and communal conflicts. It is also used in custodial and state-sponsored violence. Therefore, rape is not an act of passion, but of power. Can one be entitled to the use of such a ‘weapon’ in a partnership of equals?
The government fails to understand that a law against marital rape is the key to sexual equality. The wife cannot be a submissive chattel to the husband. “The Constitution of India guarantees equal rights to men and women. But by taking away a woman’s right to say no to forced sexual activity within a marriage you are denying her the most fundamental right of self-determination over her own body,” says Vrinda Grover.
In 2013, post the horrific sexual assault in Delhi, the Justice Verma Committee consisting of Justice J.S. Verma, Justice Leila Sheth and Gopal Subramaniam was set up to recommend laws related to trafficking, sexual assault, police, sexual harassment, child sexual abuse, medical examination of survivors and electoral and educational reforms. The set of rational recommendations backed by nuanced analysis recognised that rape was driven by the need to exert power and not passion. It dissociated rape from the ideas of shame and dishonour and instead viewed it as the violation of a woman’s bodily integrity and dignity. The Committee also redefined the meaning of consent. “Unless a woman gives her consent either by word or gesture, no one must assume that she consented as is commonly assumed when the woman is married to the accused, does not have injury marks on her body or is between 16-18 years of age.” Around 80,000 recommendations poured in from different parts of the country to the Justice Verma Committee including the appeal to criminalise marital rape. The Justice Verma Committee expanded the definition of rape which was simply penile-vaginal to include other penetrative acts such as penile-anus, penile-oral, insertion of objects into the woman’s vagina and fingering a woman.
The Commission made another noteworthy recommendation in relation to the law on marital rape. The Verma Committee had explicitly said that “marriage in modern times is a partnership of equals” and therefore, this exemption should be removed. However, the UPA government, then in power, refused to accept this recommendation stating that it would weaken traditional values. The debates that ensued in the Lok Sabha were marked by sexism, misogyny and misinterpretation of information. As a result, the Parliamentary Standing Committee chose to exclude marital rape from the Criminal Amendment Bill, 2013.
Two years down the line, nothing seems to have changed. Even with the change in the government at the centre. The country is still being led by a conservative and rigid government. Women’s rights activists, human rights activists, eminent lawyers and people from various sections of civil society have strongly criticised the government’s stance.
For most married women, being subjected to abuse by their husbands is no less than a nightmare. But the stigma of a broken marriage appears to override all other concerns. A classic tactic used by abusive husbands is to make their wives totally reliant on them. Separating from their husbands does not seem a valid choice for most women as they are gripped with the fear of becoming destitute and losing the means to provide for their children. The normative acceptance of violence in a marital relationship and their complete dependence on their marital homes for shelter and financial security further leads women to not report the violence.
Time and again, the debate over whether marital rape should be criminalised or not has been characterised by misogynistic thoughts. Even though there have also been progressive and thoughtful opinions formulated by informed sections of civil society.
The government must allot more money to rape crisis centres, more judges, more courts, safe houses for women being violated in their homes and forensic facilities.
Successive governments have made an absolute mockery of democracy by taking a regressive stand on matrimonial relationships. Does a woman’s right to bodily integrity tarnish traditional Indian values? With the UN Population Fund indicating that 75% of women in India are subjected to marital rape, it is high time that our politicians engage in a discourse with women’s rights activists and organisations to frame a progressive law.
Lastly, in the words of Kavita Krishnan, “Let’s get talking India: Marriage cannot be a license to rape!”