The pros and cons of what criminalising marital rape would entail are being offered in full fervour around the Delhi High Court’s hearing of a clutch of petitions seeking reform to the legal system. Does India needs a pointed law against marital rape? Can the question of consent be up for debate? Shouldn’t rape in every context be criminalised?
In an event that is witnessing heated participation amid the citizenry, appeals put forward seeking an overturn of the marital rape exception in Indian law are being heard in the national capital.
Section 375 of the Indian Penal Code (IPC), which relates to rape, cites an exception: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
What the law currently allows, basically, is for Indian men to legally rape their wives with impunity.
As hearings proceed, already several quoteworthy statements have been made by the court. One of those, which has led to outrage among many people, was by Justice Rajiv Shakdher on the bench, who questioned that if the law protects a sex worker against forced intercourse, then why should a wife be any less empowered?
While the context of that analogy is made in terms that hint at uncomfortable suggestions about the morality and virtue of sex workers comparative to women not involved in sex work, it makes a key observation of allowing autonomy over their bodies to women across the board – regardless of their professions, interests, choices, statuses.
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Speaking in favour of striking down the marital rape exception, Amicus Curiae Rajshekhar Rao said before the HC bench, “It violates a woman’s right to equality, bodily integrity, bodily integrity. Exception 2 is unconstitutional. Your lordships has take judicial notice of the fact that a rapist remains a rapist. The submission is, rape is a rape.”
In reflection of the perspective hundreds of Indians hold towards a law against marital rape, the government has been resistant to the idea of introducing one. The arguments put forward include a concern for the traditional institution of marriage that the marital rape law would allegedly throw into disorder.
What would disorder translate to here? To the privileges of men being dismantled, of them being held accountable for violating consent, of them not being able to subjugate their wives anymore?
India must ponder: Isn’t our institution of marriage already broken if it allows a husband to force himself on his wife?
The discourse on social media, much of which is cacophony, has deeply anxious men raising questions on the allegedly inevitable misuse of the law by women looking to ‘harass’ their husbands. The very real and urgent matter of women’s safety and consent be damned to them.
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Criminalising Of Marital Rape: Lawyers Weigh In
“Any law is open to misuse. This is an argument we usually see when it comes to violence against women, which I think is baseless,” Divya Srinivasan, legal advisor at advocacy group Equality Now addressing gender inequality, tells SheThePeople.
“For rape – we don’t know for marital rape because it is not an offence yet – the actual number of false cases is very low. In our society, it is very difficult for women to come forward and make complaints about rape and especially so when the perpetrator is the husband. There are so many economic and social consequences for her,” she adds
What we should be worried about, Srinivasan says, is not the question of misuse of a marital rape law but whether or not women will actually come forward and file complaints if the act is criminalised.
“A presumption of ongoing consent in a marital relationship violates a woman’s right to her autonomy, security and bodily integrity,” Srinivasan says. Pointing out that the current state is contrary to international human rights law, she recalls that the Committee on the Elimination of Discrimination against Women (CEDAW) in 2014 recommended that India should amend its law and recognise marital rape as a criminal offence.
Advocate and women’s rights activist Abha Singh expresses a contrasting take on the issue. “There are enough laws to protect a woman from domestic violence. Section 498 A (in the IPC) protects a married woman against physical, economic and emotional cruelty. Sections 323 and 326 also exist for when someone causes hurt,” she tells us.
Instances of marital rape “happen within four walls with no eyewitnesses… only the wife’s word against the husband’s,” Singh says, pointing out the difficulty of legal proof.
“Today, a normal rape case, conviction is not even 29 percent. When one is not able to convict rapes done by unknown people in the public domain, how do you convict in cases of marital rape without evidence?” She calls it the “toughest” matter to prove. “This would be absolutely subjective, which is why there is no law on it.”
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The myth, many Indians staunchly believe, that rape cannot occur in marriage is similar in tone to the short-sighted understanding that a father cannot rape his daughter. Data has consistently shown this to be untrue and entirely possible. Here are just some cases.
In fact, National Crime Records Bureau (NCRB) numbers claim that in a heavy majority – over 90 percent – of cases, the sexual assaulter is known to the survivor. It may be a hard pill to swallow, imagining a close relative would rape us, but it’s true and happens with shocking frequency.
In a landmark judgment last year, the Kerala High Court led the front of empowerment and said that marital rape was a valid ground for divorce. Read here.
It is alarming then, the view so many men are espousing on social media in relation to non-consensual sex, which is rape, in marriage. Some of the comments would be enough to deter single women from entering the marriage pool altogether. Read some here.
At the same time, several women are making no bones about making their understanding of marital rape known.
Researcher and digital policing expert Dr Shivangi Narayan recounts to SheThePeople the experiences faced by her domestic helper. “After she joined me, I got to know she keeps eating anti-abortion pills whenever she is pregnant because her husband doesn’t agree to wear a condom during sex.”
Dr Narayan tried getting the woman on a multiload (an intra uterine device to prevent pregnancy) but it didn’t work for her, she says. The woman then tried getting a contraceptive injection but the doctor turned out to be a quack. She underwent multiple abortions even during the pandemic period.
Recently, it was discovered that owing to multiple pregnancies and abortions, foetal remains persisted inside her uterus. After assisting her with medical help and expenses, Dr Narayan called up her husband and “threatened” him. He said he was doing nothing wrong.
“We are nursing her back to health and have told the husband that even though there is no law under which we can book him, I might still call the police and get him arrested… I told him to back off for a while. He has been quiet for a while now.”
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Dr Pam Rajput, noted Indian academic and rights activist, led a High Level Committee constituted by the government in 2012 to prepare a study in consideration of women’s views, whose inputs would then be used in policymaking against rape. Talking to SheThePeople, Dr Rajput says the recommendations that emerged from consultation with a large number of women showed a clear consensus that “marital rape should be criminalised.”
Dr Rajput says, “Nowhere is it written that the sanctity of marriage is to be sustained on the violation of a woman’s body. It is high time for these patriarchal notions to not be mixed with respect for culture.”
People should be looking at the sanctity of marriage in a positive way, she says, “in respecting the rights of both women and men.” Dr Rajput calls for a fresh review of recommendation drafts on women’s empowerment policies prepared by the committee, more so in light of the COVID-19 pandemic’s disproportionate impact on women in India.
“How can the sanctity of marriage be maintained if the sanctity of women is not maintained?” asks Dr Pam Rajput
When a woman marries, does she relinquish her rights to consent?
That the decision of a husband in the ‘mood’ for sex overrides the more crucial denial of his wife for the same is reflective of an inherent patriarchal hierarchy in marriage. The husband’s decision binds over the wife, even if it violates her agency over her own body.
Is being available for sex at all times listed as a condition for her status as a wife? Must ‘giving in’ to demands for sex be accepted as a natural part and parcel of married life, as it is currently in our country? Should a sexually coercive married man go scot-free, protected by the sacred institution of marriage? Why must sexual violence in bedrooms remain behind closed doors?
The marital law exception belongs to a different India where consciousness towards women’s rights was not as defined as it should be today. Especially since it offers the 15 years caveat, that in the wake of child marriage being criminalised stands inherently obsolete.
Rape – sex without consent, in any situation – should not be given differential evaluation in terms of interparty relations. No means no, unconditionally.
Views expressed are the author’s own.