‘Marital’ cannot be used as a disclaimer. Sex without consent is a crime, and the law needs to punish it.
Consensual sex is a crime in India. Rape is legal in India. Shocked? Disgusted? Disbelieving? Then the next two facts may leave you conflicted. Anal sex is a crime under Section 377 of the Indian Penal Code (IPC). Marital rape is legal, unless (thanks to an amendment passed in 2013) the wife is living separately or, per the IPC, is under the age of fifteen.
How common is marital rape? One-third of men interviewed by International Centre for Women (ICRW) and United Nations Population Fund’s (UNPFA) across seven states in India admitted to having forced a sexual act on their wives.
In 2013, a three-member committee comprising the Late Justice JS Verma, Justice Leila Seth and Senior Advocate Gopal Subramaniam recommended that marital rape be criminalised.
However, both the UPA and the NDA governments have failed to. A union home secretary under the UPA reportedly claimed ‘marriage presumes consent’ and the minister of state for home, under the NDA government cited illiteracy, religious beliefs and ‘sacrament of marriage’ as hurdles.
You know what else has been presumed to be sacred, derived from religious belief and existed in a time of severe illiteracy? Sati. Our minister also claimed that the concept as ‘understood internationally’ cannot be applied in India. The supreme court of neighboring Nepal didn’t think it was too cosmopolitan—it has held that marital rape is criminal since 2006.
A report published in a national newspaper last year claimed that our Supreme Court, the guardian of the constitution and the protector of individual liberty refused to entertain the petition of a woman seeking an amendment, on the premise that ‘law cannot be changed for one person.’
Those who oppose criminalisation of marital rape raise the bogey of abuse of the law. A senior advocate recently wrote that ‘If at any stage in a marriage, the wife seeks to withdraw the presumed consent that accompanies a marriage, it is open to her to live separately.’ If that’s so, the argument assumes that the husband will jump away the moment his wife screams ‘I separate’ as she is being raped.
Troublingly, the statement assumes an equality between genders. Is separation always possible for women who face abuse? We live in a patriarchal society where prejudice, discrimination, lack of access to education and work, makes many women financially dependent on their husbands. A woman living separately from her husband is stigmatized. She is often urged to ‘adjust’ or ‘save her family’ or ‘settle matters’ – even by her own family.
If abused women found it so easy to separate, then we might as well do away with laws criminalizing domestic violence too—tell women to walk out instead of putting up with it. And even if they are able to walk away, that first instance of violence- which necessitates the exit from a marital home – is still a cognizable offense and should be punished.
There is, of course, the argument that since Section 498A – our dowry law – is abused, a law criminalizing marital rape will be abused even more. Now women will be free to accuse husbands of rape once their relationship turns sour. Or trick men by giving consent and then allege rape. In response, let me state the obvious.
Every. Law. Is. Susceptible. To. Abuse. False allegations are possible within a marriage and without. That thankfully has not led us to decriminalize an act of rape outside of marriage. Secondly, and I cannot emphasize this enough: it is tough for a woman to prove the absence of consent especially in a bond of matrimony. Thirdly, for context, the crisis our society faces is one of under- or unreported sexual violence, categorically not an epidemic of false cases.
All that differentiates an allegation of rape within marriage from one beyond it is the unstated presumption that marriage entails perpetual consent on the part of the wife, a presumption one would like to believe that no law would support in the 21st century.
The 205th report of the Law Commission of England and Wales pointed out (citing a family court judgment: “Whatever may be the difficulties, actual or imagined, foreseen by lawyers, the criminal law should as a general proposition at least aim to demonstrate and to delineate what conduct is or is not to be tolerated”.
The same report went on to quote the Police Superintendents’ Association of England and Wales: “Of course, all problems that are inherent in bringing a successful prosecution for domestic assault and/or injury will also be present in trying to prove an offense of marital rape. But that is no excuse for failing to provide the appropriate legislation. The police role in trying to prevent injury and misery is weakened by the absence of appropriate legislation. Indeed, we hope that the very existence of such a law might serve as a deterrent”.
The absence of a law recognizing that marital rape is a crime curtails women’s ability to counter abuse. There is, however, hope for India. Last month, the Delhi High Court asked the Central Government to respond to a petition seeking to declare Section 375 of the IPC unconstitutional— as it discriminates against married women sexually assaulted by their own husbands.
The terrorist group Daesh (IS) among other things believes that its members own the women they marry and should be free to rape them. One hopes that the government of India disagrees.
This article was first published in Mumbai Mirror