52 countries have criminalised marital rape. But in India, lawmakers supposedly fear destabilising the institution of marriage. It’s not fear, it’s misogyny.
“Yes, he is my husband but does that mean he can rape me?”
The argument against marital rape is as simple as that. It does not matter whether the perpetrator is a complete stranger or your husband of many years; forcing an individual to engage in a sexual act amounts to rape.
When Rita (name changed), a survivor of marital rape and domestic violence, approached the local police station, she was told that since he is her husband, she must submit to his demands. This was when she raised the crucial point that whether or not the man is her husband, he has no right to rape her, a point that seems to escape our society and government, at large.
The police eventually arrested her husband, although the charge sheet only mentioned domestic violence and not rape. But their attitude, along with the attitude of her parents and her community is telling of how women are still treated as someone’s property, and as subservient.
“My refusal meant nothing to him,” said Rita when Community Correspondent Reena Ramteke asked her how she tried to oppose him. Rita added that her husband would beat her up and threaten to kill her. He would try to not let the children sleep in the same room as them, but when Rita insisted that they would, he would rape her in their presence.
“Faced by such violence threats, how could I scream?” asks Rita. Her husband’s threats aside, one wonders if many would have come to her aid had she screamed for help. The police initially said that they did not want to get involved in a marital dispute and subsequently filed only a domestic violence case, and her parents, who she thought would support her, said that her problems were none of their business anymore.
Instead of coming to a survivor’s aid, institutions like the family and the state can only make matters worse. Fortunately, her in-laws stayed by her side and helped her file a report, even encouraging her to live separately and letting her stay with them as the violence grew. Rita’s husband is now in jail.
It was not only the stigma against domestic violence and sexual abuse that made it difficult for Rita to file a case but the fact that there is no law that criminalises marital rape. The beliefs that marriage is a sacrament and that the institution of the family should be protected, run deep right from the local police in Rita’s case up to Union Ministers themselves, and within most homes.
International agreements like the CEDAW (Committee on the Elimination of Discrimination against Women) and national level committees like the landmark Justice JS Verma Committee have both recommended removing the marital rape exception from IPC 375, the section of the Indian Penal Code that defines rape. Union Minister for Women and Child Development Maneka Gandhi, who first infamously said that marital rape is a concept that does not apply to India, also later suggested that the government was mulling criminalising the offence. Consequently, the matter was left up to the Law Commission.
The issue hit the courts again in cases of marital rape against minor survivors not below 15 years of age and also when groups of activists petitioned against it again. In the former, the courts ruled that marital rape of a minor below 18 years would also be considered a criminal offence because it would be considered rape under the Protection of Children from Sexual Offences Act of 2012.
Petitioners have also sought the same safeguard for adult married women. Although the petition challenging the exception to IPC 375 is still being heard in the Delhi High Court, senior Supreme Court judges like Justice Chandrachud have also argued that the right to say ‘no’ should be a right after marriage too. In another case, the Gujarat High Court gave relief to a man accused of marital rape on the ground that there was no law to book him under but made it clear that the offence is an injustice and must be criminalised.
Interestingly, a counter-petition challenging the aforementioned PIL in the Delhi High Court also surfaced earlier this year. The petition, filed by a ‘men’s rights group’, argued that marital rape should not be an offence because there are already enough laws protecting women from sexual abuse, and that criminalising it would only harass men further. The court eventually struck down the PIL, hopefully setting a precedent in favour of criminalising the offence. The government, however, has not shown an active interest in doing so.
That married women are already protected by several laws, especially the Protection of Women from Domestic Violence (DV) Act of 2005, is the most common argument against the criminalisation of marital rape. Although the DV Act mentions sexual violence, it is a civil law and not a criminal law. It is precisely what happened in Rita’s case; the police filed a case of domestic violence and her husband is now in jail. But the problem lies in the failure to recognise that non-consensual sex perpetrated by a husband is also rape and that a woman has absolute autonomy over her body and her life, whether she is married or not.
Video by Community Correspondent Reena Ramteke
Article by Alankrita Anand, a member of the VV Editorial Team