JOIN USWomen have a right to say NO!
In a deeply patriarchal country, a subject like marital rape is often dismissed and ridiculed. It is cleverly camouflaged with idioms of how Indian culture and marriage traditions are sacrosanct. If we look into the mirror, we can see some ugly truths about how Indian marriages have subtly integrated violence and made it normal. Can we deny that marital rape is widespread as women rarely have a voice in male-dominated societies? Many do not even choose who they can marry or the life they want to lead. Figures of how rampant marital rape is can never be available as women would not openly want to talk about it. We know it is high. Ask any married woman.
India is among three dozen countries where marital rape is not an offence. An institution like marriage which is considered sacred in India, should not tolerate any violence or regressive ideas, but when it comes to marital rape, even the government drags its feet, saying that if marital rape is criminalised, it will hurt the institution of the great Indian family!
The Trouble with Marriage, authored by Srimati Basu underlined that feminist intervention in questions of marriage, body, sexuality, and violence was associated with the destruction of family, marriage and love. Absolutely true. But, how many men would admit this?
Social workers and gender activists have time and again pointed out that marital rape needs to be criminalised to stop sexual violence in marriages. The petitioners contended that married women suffered greatly due to sexual abuse. Women have little control over their bodies as far as sex is concerned. This is a bitter truth. And marital rape is prevalent in both educated and uneducated families and also among the affluent and poor families. It has nothing to do with education or social status. With the Delhi High Court recently delivering a split verdict on the criminalisation of marital rape, the spotlight on the issue is back.
Morally unacceptable
Justice Rajiv Shakdher said marital rape was morally repugnant and should be criminalised as modern-day marriage was a relationship of equals and consensual sex was at the heart of a healthy and joyful marital relationship. However, Justice C Hari Shankar said that non-consensual sex by a husband within the marriage did not amount to rape as the woman did not feel the same outrage as a woman raped by a stranger. He said a married man having sex with his wife could not be termed a rapist.
As it is a split verdict, the petitioners — RIT Foundation — were allowed to approach the Supreme Court as it raised a substantial question of law. The Gujarat High Court had in 2018 held that marital rape should be criminalised. Exception 2 of Section 375 of the Indian Penal Code decriminalises marital rape, saying that sex by a man with his wife is not rape, provided she is not under 18. Justice Shakdher said the marital rape exception was steeped in patriarchy and misogyny. He noted that a man does not have an unfettered right to have sex with his wife without her consent.
Justice Shankar said that if a man requested his wife to have sex, he was exercising a right vested in him by marriage and if the wife refused, but he still had sex with her, it could not be equated with the act of ravishing by a stranger. Justice Shakdher said that the court was faced with a legal question of whether the exception violated the fundamental right to equality and the woman’s right to bodily autonomy and self-expression. He said that shunning the responsibility of deciding this would amount to abandoning the court’s constitutional duty.
Justice Shankar said that the court could not just strike down a law because it feels that the act should be an offence. The exception of the marital rape clause did not violate equality as non-consensual sex with a stranger, and a husband is fundamentally different, he said.
The court was hearing pleas filed by RIT Foundation, an NGO, and the All India Democratic Women’s Association seeking to strike down the exception that discriminated against married women whose husbands sexually assaulted them.
Predictably, some men’s groups have opposed striking down the exception in the law as married men accused of rape by their wives will not be then protected by law. One argument is that if marital rape is criminalised, it will be potentially misused to corner husbands. But, that is no excuse as even dowry and other allegations can be false, but that does not deter the powers that be to frame a law. If the allegations are false, authorities can act against them and penalise them.
The law in question is over 160 years old. Why are we clinging to something that was written so long ago? Activist lawyer Karuna Nundy who argued for the petitioners told the court that criminalising marital rape was about respecting the right of a wife to say no to unwanted forcible sex. Marriage is not a license to ignore consent, she said.
All about masculinity?
A study by the United Nations Population Fund in 2014 found that for the average Indian man, masculinity was about acting tough and freely exercising his right in personal relationships and controlling women. Nearly 60 percent of men admitted using forms of violence like kicking, beating, slapping, choking and burning to establish dominance. The government must now criminalise marital rape as it would send a stern message that women have a right over their bodies. But, that would require courage and political will.
(The writer is an author, documentary filmmaker & journalist based in Delhi.)