Trigger warning: mentions of marital rape and domestic violence
The Delhi High Court is hearing a petition challenging an exception to Section 375 of the Indian Penal Code (IPC). As per the exception: “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age is not rape.”
The said exception to Section 375 of the IPC, is silent on marital rape. It has been observed by our apex court and different high courts that rape is, morally and physically, the most reprehensible crime in a society.
Rape is rape, in the absence of the consent of a girl. Whether she is a married girl or an unmarried one, is irrelevant. Therefore, it is necessary for the Delhi High Court to interpret the exception in a manner such that a married man can be prosecuted for raping his wife.
If marriage is more than just a physical relationship, then I don’t find any justification for allowing men to do whatever they want to do, with their wives. It is the responsibility of the man to respect her individuality, identity, liberty, choices, and dignity.
Marital Rape Should Be Legally Recognised
If a man doesn’t understand the meaning of ‘NO!‘ then there is no reason to refrain from taking action against him, under Section 375 (to do with rape) of the IPC. The woman can also divorce her husband, but that is not an adequate alternative.
Due to the unbearable pain and trauma the wife had to undergo, we can’t ask her to forget everything and take divorce. Marital rape is morally, ethically, and in my opinion, legally intolerable. The offender should be prosecuted.
There should be a line and everyone, irrespective of the fact that a man is also someone’s husband, should understand the consequences of crossing that line.
She may be your ‘wife’ but that doesn’t mean that you are her ‘master’ who can do anything and everything, against her will and without her consent.
Women Ought To Be Respected
I am reproducing a snippet from the third chapter of my book, “15 Strangers: Conversations That Mean A Lifetime”. It contains my conversation with a stranger about her matrimonial life.
The chapter and conversation tell us about the importance of recognising marital rape as an offence. The title of the chapter is ‘She Is Not Your Toy, Don’t Play With Her’. So, here goes:
Relationships are not a kind of agreement. We cannot treat them as contracts, and we cannot apply the rule of contracts to break the relationships. Marriage is an important part of anyone’s life, and we all are incomplete without our life partners. Marriage is a bond between two souls, that binds them with a cord of trust and love. But, why do we see relationships falling apart, and isn’t love enough to keep the relationship going?
‘I Met Her During My Internship Days’
It was during my internship days when I used to appear before the court for making requests related to passovers, or for taking adjournments, or making submissions and taking dates in those matters which were listed under miscellaneous purposes.
These were and are our prime duties during internships. After completing my duty for the day in the courtroom, I was sitting in the canteen on the third floor of Tis Hazari court, for a cup of tea. That canteen is better than any other in the court premises, although I can’t claim the same thing about tea. However, if you are an advocate or intern, or a client, then you can have coffee from that place. I am sure that you will love a cup of coffee.
“Kya main yahan baith sakti hun (can I sit here)?” said the girl who was standing in front of me, with a smile on her face. It was not difficult for me to observe whether the smile on someone’s face is natural or artificial.
But, I was not observing her smile. I didn’t have any reason for doing so. “Of course, yes. I don’t have any private right over these chairs. Isn’t it so?” I agreed, and she sat next to me. She told me that she came to the court regarding a family matter.
‘She And Her Husband Were Getting Divorced’
She was fighting a divorce case against her husband. Later, the both of them, the husband and wife, had decided to apply for a ‘divorce by mutual consent’. On that day, the both of them recorded their statements in court. And, the court passed the first motion in their divorce petition.
She had some queries about the procedure ahead, the second motion and about applying for certified copies, as she may have had some trust deficit with her husband’s advocate.
Although I can’t say anything about this for sure, but yeah, I have observed that there is some kind of insecurity between advocates and clients, especially in those cases where only one counsel is appearing for both the parties.
Although I didn’t have a law degree at the time, I had some knowledge about the law and procedure of divorce cases, as I was dealing with them in my office. I shared the procedure and law with her, as asked by her.
Are Marriages Made In Heaven?
And, then she asked me: ‘kya har din itne cases lagte hain divorce ke (are there so many cases of divorce listed everyday’)? I could feel her pain when she asked me this.
After the decision to stay with him for a lifetime of togetherness, she was watching her relationship shatter. And, she was my new stranger.
Maybe, it is easy for an advocate to draft and file a case, but it is difficult for the clients to deal with their feelings, emotions, attachment, and love. There is no doubt that it is their choice and decision, but a part of me is aware that it is not easy for them to make a decision about separation.
Sometimes, it is in our hands to select our life partner, and sometimes, it is not in our hands to make these choices. However, in both cases, we are used to believing that relationships are made in heaven, and that they are beyond our control.
‘Is Love Enough To Keep A Marriage Going?’
The question that needs to be answered is: why are divorce cases increasing and why it’s becoming difficult for couples to maintain their marriages and relationships?
She was a young and confident woman. Even though she was broken, she was independent and keen to start her life afresh. She shared her story with me. She was still in love with her husband, but she was not ready to live with him.
‘Kya woh aapse pyaar nahi karta (does he not love you)?’ I asked her with a sense of curiosity. ‘Kya pyaar kaafi hai (is love enough)?’ she immediately responded. ‘I don’t know, I am single,’ I replied with a smile.
She laughed at my response, and I could observe that her laugh was natural, not artificial.
‘She Was In Unbearable Pain’
‘Usske liye aadmi hone ki definition kuch aur hai, aur mere liye mushkil hai khud ko iss tarah khote hue dekhna (for him, the definition of being a man is something else, and it is difficult for me to see myself be lost like this)’ she said.
Thereafter, I asked her why she was not contesting the case. She said that, ‘At the end of the day, we have to take a decision, and I took the decision not to see his face. I don’t want to remember the torture that he committed.’
She was in unbearable pain. I told her that, ‘I can imagine that it is difficult for you to take such a decision when you are in love with someone. But, you have the right to disagree with your life partner, and the freedom to take an independent decision.’
She said that, ‘I am strong, but marriage and relationships made me weak.’ She asked me: ‘Why don’t men want to protect their relationships?’ She said that she tried her best to protect her married life, but her husband was not happy with her mental, emotional, and physical support.
‘She Wanted To Live Life On Her Own Terms’
She said that she gave him chances to improve. She wanted to respect his love. ‘Keval pyaar aadmiyon ke liye kaafi nahi hai. Woh shaadi karke sochte hai jaise koi gudiya unke paas hai, jisko khilona bana kar roz apne hisaab se khele (love alone is not enough for men. They think that they have a toy to play with as they like, after getting married).’
She was crying and she further said: ‘Hum bhi insaan hai, hum bhi apni zindagi apne hisaab se jeena chahate hai (we are human beings too, we also want to live our lives on our own terms).’
Every soul in this world is beautiful, and all human beings are equal. Your life partner belongs to you in a sense, and you do have rights over them, but this does not mean that you don’t respect the rights of your life partner.
We have to give respect to every soul. We are incomplete without our life partner. Love is not enough to be with someone. We have to understand them. We have to acknowledge their existence.
‘He Used To Beat Her Up’
She told me that aggression is not the sole reason for their divorce, but that it was an important reason for the same. Whenever she tried to object to something, her husband used to beat her up.
‘Har baat pe ladai hone lagti thi. Aakhir kab tak aur kis hadd tak kisi ki demand poori kar sakte hain (there used to be a fight over everything. After all, for how long and to what extent can we fulfill someone’s demands)?’ she told me, when I asked her about resolving disputes before taking such a step.
‘Hum kab tak majburi samajh kar sehte rahenge, kabhi na kabhi toh kadam lena hi hai (for how long will we continue to suffer as if it’s a compulsion, we have to take steps at some point or the other)’ she said with courage.
She taught me that someday or the other, we have to make a decision, and that too, some strong decision.
Some Women Might Misuse The Law?
It is not difficult for me to take a stand on marital rape. This is the time when we have to make laws regarding marital rape and recognise this issue. Don’t act all powerful and dominant just because of the fact that you are a man.
Those who are against marital rape do have a point that women can misuse this law, because it is not always easy to differentiate between rape and consensual intercourse.
But, just because of the fear that someone can take advantage of the law, we cannot give liberty to individuals to break women’s souls just because they are with them.
For a successful marriage, you need to have mutual understanding, adjustment, love, and give respect to your other half. We should think about the mental and emotional support required to live a peaceful life.
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‘Raaz’ Dheeraj Sharma is an advocate and the author of “15 Strangers: Conversations That Mean A Lifetime”.