DC Debate: The government’s refusal to criminalise marital rape is regressive
It’s ghar ki baat?
Ranjana Kumari Vs Bhanu Kumar
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Ranjana Kumari - Rape is rape, in marriage or outside
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The Verma Committee suggested that the law should clearly mention that marriage or any other relationship between the perpetrator or victim shouldn’t act as a defence against the crimes of rape or sexual violation
Marriage is not a licence to rape. It remains sacrosanct when it is kept sacrosanct and boundaries are not defied. But in the Indian scenario, marital relationships differ and the reality of the woman is far away from her being invulnerable. Marriage is supposed to be relationship of love, care, happiness and interdependence, but we can’t deny the fact that stories of violence in marriages exist.
In a society like India, where deep-rooted patriarchal thought processes prevail, the basis of marital relationships is unequal partnership. Even according to our traditions, women are “donated” (kanyadaan) in marriage to the man and his family. Therefore, the institution of marriage hands over and legitimises control of women’s body, mind and wellbeing to a man. He takes it as his entitlement to use, abuse or derive pleasure from the female body. Hence, marriages which are considered to be sacrosanct, do have stories of violence, abuse and sexual assault.
I agree that sex is an integral part of a married life, but this does not mean that the woman should be coerced or forced into having sex with her husband without her consent. A marriage is also based on trust and respect and should not be underpinned by violence and fear. No one is denying the man the right to say no to sex, so why deny it to a woman. Marital rape violates women’s rights in the same way that rape outside marriage does.
Significantly, according to National Intimate Partner and Sexual Violence Survey, 2010, 18.8 per cent women are sexually assaulted by their partners on more than one occasion. This was also put forth by numerous presentations made before the J.S. Verma Committee, which recommended that the exception to marital rape should be removed from IPC as it makes a differentiation between rape within and outside marriages.
In any case, under IPC, sexual intercourse without consent is prohibited. But strangely enough, an exception is made for non-consensual sexual intercourse between husband and wife. The same logic extends to another very irrational decision about sexual intercourse forced on a 15-year-old when the legal age of marriage for girls is 18 years and child marriage is prohibited.
Such arrangements in marital relationships in India are based on the patriarchal structures of families where the wife is supposed to succumb to the status of a subordinate. Millions of women in India are silent sufferers of aggression, humiliation and much abnormal behaviour from their partners. This stands true to the definition of sexual assault in modern law.
The groundless argument of India not being ready to criminalise sexual assault in marriages doesn’t hold good because it is taking the society away from the reality where women face extreme violence in marital relationships. We live in a male-dominated society where women are marginalised in every sphere, whether it is equal rights to marital property or rights to paternal property. Even in the political space, women have only 11 per cent representation in Parliament as compared to three per cent 66 years ago. This is the condition even when India is the largest democracy in the world.
The Verma Committee suggested that the law should clearly mention that marriage or any other relationship between the perpetrator or victim shouldn’t act as a defence against the crimes of rape or sexual violation. The exception to marital rape must be removed.
Dr Ranjana Kumari, director, Centre for Social Research
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Bhanu Kumar - Marriage is spiritual, not sexual
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Law can do little in changing the social mindset... Even if there is forceful sexual gratification within a marriage, the long-lasting solution will be social instead of legal because legal interference would make it complex...
Indian culture is not only a consequence of evolution of thousand years, but a perpetual process of change. Our unique social fabric is a result of this balance of continuity and change, history and tradition. Just as we have the basic structure of the Indian Constitution, we also have the basic structural and functional bases of our social system that need to be maintained. Few researchers and academicians challenge the real social construct because it may lead to a situation of ambiguity. The ongoing discourse on marital rape is the result of lack of understanding of the construct of our society and socially organised marriage.
Critics have undermined the larger meaning of “authority” under marriage. Marriage is one of most important social constructs of our society and here authority is two-fold and not patriarchal. Firstly, man and woman in a marriage have equal authority over each other. Then comes the larger authority of the family and the society, which sanctions the marriage with the consent of the couple and the law of the land.
Marriage in our culture is not a contractual relationship; it is sacrament. One thread is the promise that holds it not only for a lifetime, but also for many lives to come. It is an alliance between two families rather than only a union of two individuals. Marriage in our culture is for spiritual, social and physical purposes where sexual gratification is only a part not the sole purpose of marriage. Our definition of marriage is shaped by our own realities and context, our social customs and values, religious beliefs, mindset of society that considers marriage to be sacred. Thus, one cannot look at it through the Western lens.
A Hindu marriage revolves around a number of rituals and customs, one of which is solemnising seven vows or “pheras”. These seven vows are the seven promises the bride and groom make to each other for a happy and prosperous life. These promises underline the importance of mutual trust and respect between the husband and wife. Thus, any kind of brutality is against the values of Hindu social system, which believes that protection of women is one of the larger purposes of marriage.
The definition of rape in Indian Penal Code 1860, as amended by the Criminal Law (Amendment) Act No. 13 of 2013, has not changed the previous clause which excluded forced sex within marriage in the definition of rape. It explicitly said that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape.” A group of Left-leaning pseudo-intellectuals are trying to see the Indian society through Western lens. India social system is entirely different from the West. The idea of marital rape goes against the traditional family system in India where marriage is a steadfast institution.
Law can do little in changing the social mindset and, to be precise, an individual’s mindset. Even if there is some sort of brutal problem like forceful sexual gratification within a marriage, the long-lasting solution will be social instead of legal because legal interference would make it more complex and dirty. And, a debate aimed at giving security to women, may create a situation of insecurity for her by vandalising the sacred institution of marriage.
Also, past experience about, say, the dowry law, shows that such laws are susceptible to misuse. Allegations of rape might be made in the wake of marital disputes, causing irreparable damage to the institution of marriage.
Bhanu Kumar is a scholar with India Policy Foundation, an RSS think tank
