Hyderabad: DC debates if a man can be prosecuted for marital rape or if the judiciary must pay heed to societal norms.
Meenakshi Lekhi, Bharatiya Janata Party MP and Supreme Court Advocate
It is a fallacy that ‘marital rape’ is not recognised in the Indian law and that persons who suffer under such circumstances have no recourse. In case of violence, the woman has the liberty to leave the marriage and immediately obtain a restraining order against the husband under the Domestic Violence Act, 2005. The woman can further seek divorce on grounds of cruelty and proceed under the provisions of the Indian Penal Code.
More specifically, the law makes a reference to marital rape in Section 375C of the Indian Penal Code, which states that, “Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years, but which may extend to seven years, and shall also be liable to fine”. It is true that this is applicable where the partners are separated, but it is still a recognition of forceful sexual violence against a woman.
Section 375C underlines the point that the government made in Parliament recently — that the institution of marriage is sacrosanct and as far as possible, we keep it intact in our individual capacities and as families, and not by virtue of governmental or judicial support. However, when a marriage fails, the law steps in to protect the vulnerable. This was the point that was reiterated through the 172nd Law Commission Report and the 2013 Home Affairs Standing Committee Report as well. Why then are we seeking to compound the problem by adding another layer, when all these legal channels are available to a victim?
If legal recourse is adequately available in the law and the institution of marriage is sacrosanct, but not impervious to external pressure, why should we threaten it so severely with juridical punishment? The institution of marriage in India is very different and cannot be compared to other countries.
A lot of Western countries have among the highest divorce rates in the world. In this context, we should give some credit to the fact that our institutions have stood the test of time comparatively better and that we have our own unique traditions for maintaining this sanctity of marriage. One of these is to attempt reconciliation at all costs; even divorce proceedings are preceded by mandatory reconciliation procedures. Before the marriage reaches a point of no return, such as a point of cruel sexual violence, an environment of reconciliation must be present and where it is missing, we must seek to create it.
That is our social norm and that is the norm that any judicial or legal system must seek to protect instead of heading straight towards irrevocable punishment.
Speaking of irrevocable punishment, it must be pointed out here that since the implementation of the Domestic Violence Act, it is clear that it is not only women who are victims, but also men.
Kalpana Kannabiran, Professor & director, Council for Social Development, Hyderabad
The debate on marital rape has returned again. To translate the essence of this debate very simply, “can a man be prosecuted for raping his wife?” This is not a new debate and has a very long history of resistance by women on the Indian subcontinent.
Macaulay’s draft of the Indian Penal Code in 1860 had the clause “Sexual intercourse by a man with his wife is in no case rape.” Through the 1870s there were reports about the battery and deaths of child wives by irate adult husbands who largely went unpunished by British courts. In 1890, Phulmonee, an eleven-year-old girl from Bengal, who had not yet come of age died after thirteen hours of profuse bleeding after her 35-year-old husband raped her.
Phulmonee’s mother took her son-in-law to court: “I saw my daughter lying on the cot, weltering in blood…” she said. Not surprisingly, the British court acquitted him. Like her, several mothers of girls and girls who had been raped by their husbands testified in court despite taboos against women appearing in public; lady doctors in Bengal brought out lists of girls who had either died or been grievously hurt by marital rape. All of this has been researched about and published in the last thirty years
by well-known historians and legal scholars like Vasudha Dhagamwar and Tanika Sarkar.
Tarabai Shinde questioned publicly the subservience of women to retrograde ideas of “stridharma.” Babasaheb Ambedkar clearly identified violence within marriage — child marriage, sati and enforced widowhood — as key to perpetuation of the caste system and its attendant violence.
The Constituent Assembly in 1948-1949 stated that: “The State shall endeavor to secure that marriage shall be based only on the mutual consent of both sexes and shall be maintained through mutual cooperation, with the equal rights of husband and wife as a basis.”
In 1971, the Law Commission of India, in its 42nd report, recommended the removal of the exception of marital rape from the legal definition of rape. The Justice Verma Committee in 2013 recommended the removal of this exception. The UN Committee on Elimination of all forms of Discrimination against Women, in its Concluding Observations on India in July 2014, has strongly recommended the same, based on depositions by groups working with women who have survived domestic violence.
Parliamentarians opposing criminalisation of marital rape today suggest that in Indian culture it is honourable for men to have the freedom to sexually assault their wives. Not my India. The Constitution of India makes no distinction between women and wives.
All women, irrespective of marital status have the right to equality, life with dignity and bodily integrity.
These shall be respected at all times by all persons — especially by husbands and elected representatives.
In putting out this view so blatantly, the legislature is acting in violation of the Constitutional spirit and its core tenets.
It has also demonstrated its ignorance of modern Indian history and the Constitutional vision that must be the touchstone of decisions within Parliament.
