That even now we are debating the criminality of marital rape speaks volumes of the ambiguity with which policymakers in India continue to address what is an open and shut case.
Instead in court it was the same old circumlocution by the centre saying it was looking at the broad changes in criminal law and that it needs time to speak to all ‘stakeholders.’
In marital rape, there is only one stakeholder and that is the victim. Yet, this pivotal issue of safety by allowing women to have an agency over their own bodies continues to meet resistance.
For one, criminalising it will allow for the balance of power to shift even though women are 48.6% of the population and there isn’t much to tell between the two genders. But in a society where the patriarchal strain is dominant, this thought makes for an uneasy bedfellow and is dismissed either through delaying tactics or in sweeping generalisation of feminism.
Marital law in India is not defined under any law and the opposition comes from perceived threats to “destabilise the institution of marriage and become an easy tool for harassing husbands,” as listed in an earlier affidavit by the centre.
This moral standpoint neglects a crucial point — if a husband rapes his wife, the social structure has collapsed and the ‘institution of marriage’ is already toxic.
Under the garb of these sociocultural norms, marriage and sex are considered a packaged deal, whether the wife agrees or not. Consent over her body is given by the family and society, allowing gender based violence a free rein.
Time and again governments including the ruling BJP and the Congress before have preferred a status quo on the marital rape law which is why Rahul Gandhi’s words in its defence are meaningful.
“Consent is among the most underrated concepts in our society. It has to be foregrounded to ensure safety for women,” tweeted the Congress MP as Delhi High Court hears a bunch of petitions challenging the granting of exception to a husband under the Indian rape law.
The importance of consent
As it exists, a man can have sexual intercourse with a wife aged 18 years or above (the statutory age was raised from 15 years in 2017) even without her consent. Although Section 375 of the Indian Penal Code refers to penetration without consent rape, it sets different rules for a married couple. Last year the Chhattisgarh High Court cleared a man accused of rape by his wife using this very loophole.
A 2020 NCRB report says that more than 22,000 housewives killed themselves, (a Lancet report says suicides in India are unreported by 30-100%) a figure that increased by 14.6% in the lockdown seconding the urgency for redressal especially when women have been stuck in proximity and without the support of their own families.
After marriage in our society’s outlook the identity is only that of a daughter-in-law, a wife and a mother. Empowerment of women should be a no-brainer but our progress has different parameters.
The counter attack asking for safeguards for men is predictable. Anything that focuses specifically on women rights gets this reaction. Is it the insecurity of losing this unequal distribution of power within the four walls of a home where violence has been unaccountable?
The lines between domestic abuse and marital rape blur easily. The potential for misuse is in almost anything, but why should that stop us from correcting a wrong? The government and the judiciary now need to do the right thing by ensuring not just a law but also accompanying justice that is swift.
Protecting women in rural India
Nor are women always helping their own, some dismiss marital rape as a myth looking away as physical violence is inflicted on their peers. The biggest disappointment through this process was Maneka Gandhi as Minister for Women and Child Development who once said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education or illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament ...” On the contrary, the need to protect the women in rural India through a law is even more paramount.
But a few good men have kept the fight going. A landmark judgement by the Kerala High Court ruled that, “A husband’s licentious disposition disregarding the autonomy of the wife is a marital rape, albeit such conduct cannot be penalised, it falls in the frame of physical and mental cruelty.”
This was echoed by the Justice Verma committee set up after the Jyoti Singh (Nirbhaya) gang rape in 2012 to strengthen the laws against sexual assault. The committee recommended that marital rape be criminalised with consent being its integral part.
Consent though remains a much neglected part of our lexicon, just look at how Rahul Gandhi’s tweet has not resonated across male politicians of different parties. And yet, it has been troubling us for centuries. The Age of consent Act was enacted in 1891 in British India after a 10 year old minor Phulmony Dasi died when her 35-year-old husband tried to forcibly consummate. The husband was later acquitted of rape.
The stalling in court shows that the outlook all these years later hasn’t changed much. India refuses to follow in the footsteps of 150 countries that have criminalised marital rape. What does it say about women rights in our country when we are in the same league as Afghanistan?
The first rule of a gender neutral world is parity which includes not just empowering the women but also telling the men that vows doesn’t imply consent.
The crime is also in allowing a husband to force himself on his wife and by not defining marital rape. National Family Health Survey in 2018 revealed that 31 per cent of women who have been married once have gone through physical, sexual or emotional violence at the hands of their spouse.
Consent won’t be a priority in sex education which is where the learning needs to begin for both boys and girls until the government acknowledges it. Instead the ask of telling the youth to be fierce and to not leave the potential for being misinterpreted becomes personal.
Time is running out- not just because of lockdown induced domestic abuse- a survey says 1 in 3 women in the country have faced some form of violence- but also the easy availability of porn which has been powered by the smartphone boom in India and allows violence to be normalised.
The Delhi High Court asks when a sex worker can say no at any stage, “can a wife be placed on a lesser pedestal?” All it takes is a No.