Our scheme of penal statutes addressing crimes against women is wide and all encompassing – rape, sexual assault, dowry deaths, domestic violence, etc. But there is a gaping hole as we have failed to criminalise marital rape. We seem to be stuck in the medieval mould that marriage gives the husband unrestrained sexual access to his wife. Two reasons are cited in defence of this lapse. The first is a cultural argument — that it militates against the Indian cultural ethos where marriage is viewed as a sacrament. The second is the justification offered by Union minister Maneka Gandhi, that even if there is a law in place, women will not use it and file complaints of rape against their husbands — a sort of chicken and egg dilemma.
Former IPS officer Kiran Bedi points out that women endure marital rape due to their socio-economic-psychological dependency on their husband. Very few disclose sexual assault. A similar view is also expressed by Dr Rekha Davar of the Mumbai-based J.J. Hospital who stated even when there are visible injuries, it requires a great deal of prodding for women to admit that they have been sexually abused by their husbands. NGOs contradict this view. According to them nearly 20–25 per cent of women admitted with brutal injuries, admitted to sexual abuse. However, most were not willing to report it to the police.
My concern over this issue is slightly more complex. Unlike rape by strangers (or known persons), within marriage, sexual abuse is an integral part of the continuum of violence inflicted upon women within a relationship of subordination. Also, the definition of rape or sexual assault under Section 376 is far too linear to include a range of violations which married women are subjected to, which can broadly be categorised as “sexual violence”. It is not confined to penetrative sex. It comprises a range of violations. Refusal to have sex because the husband finds his wife’s body repulsive; threatening that if she denies 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 to undergo abortions for a male child... the list is endless. These sexual violations are committed only within a marriage because of the extreme vulnerability which married women experience.
At another level, for most girls who are forced into marriage at a very young age, marital rape occurs on the bridal night itself. The Protection of Children from Sexual Offences (POCSO) Act, 2012, penalises consensual sex with any person under the age of 18. But the rape law exempts husbands if the wife is above 15 years. A PIL pending before the Supreme Court to clarify this dichotomy is gripped with this concern. Recently when it came up for hearing, the concern for the government was the huge numbers of marriages are performed in good faith which will be criminalised. Around 240 million women in India alive today were married before they turned 18. Since POCSO prescribes mandatory reporting, a case can be filed even without the consent of the girl. Such state intrusion into the lives of these young girls may not be in their best interest.
When confronted, Ms Gandhi suggested that women should file complaints under the existing laws dealing with domestic violence as it would include marital rape. But this would entail filing complaints under the much-maligned legal provision — cruelty to wives under Section 498A of the IPC — which can be clubbed with the civil law of domestic violence as it provides for protective injunctions restraining the husband from future acts of violence, and also secures her right to shelter and maintenance. While this seems to be a feasible idea, it can be executed only if the government issues clear directions in this regard.