The comments of the minister of state for home, Haribhai Parthibhai Chaudhary, in the Rajya Sabha on April 29, 2015, that since marriage is perceived as a sacred union in India, marital rape cannot be included in the rape law has stirred up the hornet’s nest and brought the simmering controversy to a boil. The debates on television are shrill, the views expressed in opinion columns sharp, and a consensus is emerging among legal experts and social activists that the exemption awarded to husbands under the rape law must go.
United Nations’ surveys, international re-search studies and National Family Health Survey, all point to the wide prevalence of marital rape in India, and are quoted in support of their arguments. The equality clause of the Constitution is invoked to state that “a rape is a rape” and all rapes must be treated alike. Sounds convincing. Real-life victims or their narratives are in display to render support to the argument. There exist heart-rending stories of gruesome sexual abuse — of women being raped every night, even during pregnancy and soon after childbirth, throughout their married life, from the very first night. Thrown out of their matrimonial home after their husbands brought in another woman or unable to endure this life any longer, they now seek justice.
These stories make me wonder what else did this woman endure apart from the violent sex every night. And had it not been violent sex but brutal physical violence which had fractured her skull, broken her nose, damaged her cornea, inflicted deep gashes on her back and injured her kidney or led to the loss of her right thumb, would her trauma be any less?
Few experts and commentators want to address this concern because the focus, after all, is on marital rape. The rest does not matter at this stage. They seem to indicate that every woman who suffers non-consensual penetrative sex wants her husband to be punished with a minimum of seven years, because the three years awarded under Section 498A of the Indian Penal Code — cruelty to wives — would not suffice. The fact that conviction rates under Section 376 (rape) are just about 15 per cent and mostly in cases of brutal rapes of minors by strangers, does not seem to matter.
It is projected that the victim endured sexual violence and did not approach the police station to file a complaint only because of the exemption awarded to husbands under Section 376 of the IPC, and she will be liberated only when this exemption is removed. Then she will be able to walk out of her marriage the morning after her wedding night, straight into a police station and file a case of rape. Thereafter, she will live happily, chasing justice in police stations and court corridors and stoically facing the humiliation and stigma with the hope that at the end of this ordeal her husband will be sent to jail for seven years. A fallacy indeed!
Even if the government brings in the amendment as being demanded by the campaigners, it will not bring any change into this woman’s life unless she has a strong support base, and the society stops viewing marriage as the be all and end all of a woman’s life. As Kiran Bedi has pointed out, women endure marital rape due to their socio-economic-psychological situation and very few include sexual assault in their complaints to the police, the courts or the counsellors.
Not until every one who intervenes to help a woman facing domestic violence — from the elders in her natal family, community leaders and religious heads to counsellors in family counselling centres, protection officers in government offices, investigating officers in police stations and judges in trial courts — stop convincing women to compromise, endure the violence and save their marriage, the removal of the exemption to husbands will have any significance. It will just be an ornamental piece of legislation in our statute books, leaving the campaigners with a sense of achievement, while the ground reality for abused women remains unchanged.
Lacking state support and economic means, marriage is the only option for most women to ward off destitution and to secure a roof over their head. Rape every night and domestic violence is a small price to pay for it. The challenge is to find solutions to secure her rights within the range of remedies available under existing laws. Not just divorce, but injunction restraining the husband from committing future acts of violence, securing her right to shelter and maintenance, and a criminal complaint under the much maligned Section 498A of the IPC — cruelty to wives.
It baffles me as to why legal experts campaigning for inclusion of marital rape under the rape law are not pointing out these options. By this omission they are subscribing to the erroneous belief that a man who has violent sex with his wife and causes her grave injury is not culpable under any prevailing provisions of criminal law. To give an example, what can be termed as “sexual violence” within marriage is not confined to penetrative sex or insertion of objects into body orifices. From the experiences that women narrate, it is inclusive of a range of other acts of a sexual nature, including refusal to have sex because her husband finds her body repulsive, threatening that if she denies him sex he will bring other women into the house and indulge in sexual acts in her presence, or rape their minor daughter, forcing the woman to have sex with his friends in his presence and filming it, forcing the wife to have group sex or forcing her into prostitution, forcing her undergo repeated abortions in pursuit of a male child, etc.
These sexual acts are committed only within a marriage because of the extreme vulnerability which married women have vis-a-vis their husbands. They form a special category of sexual violence within marriage. At another level, for most girls who are forced into marriage at a very young age, marital rape occurs on the bridal night itself. A recent survey has revealed that 41 per cent of girls under the age of 19 are married. The Protection of Children from Sexual Offences (POCSO) Act, 2012, which penalises consensual sex with any person under the age of 18, does not exclude husbands from its purview. So technically in all cases where the girls are 18 or below, the husbands can be booked under this act.
But are they? And worse, will such state intrusion into the bedrooms be an appropriate route to curb child marriage?
Most countries have deleted the exemption granted to husbands under the rape law, but many have also made their rape laws gender neutral. This is precisely the demand made by men’s rights groups such as Save Indian Family Foundation. But what will its implications be on our women? Rather than invoking Article 14 and equality to argue against the exemption awarded to husbands, we will be better off if we base our arguments within Article 15(3) — treating married women as a special category, needing additional protection considering their multiple vulnerabilities. Within this formulation, marital rape can be defined as part of the continuum of violence inflicted upon married women, rather than isolated acts of forcible penetrative sex as defined under Section 376 of the IPC.
The writer is a women’s rights lawyer