Why is India dragging its feet on criminalising marital rape?

A woman who is trapped in a relationship in which she is forced to have sex against her wishes is just a sex slave. Even worse: a married woman in India, who is in such a relationship, is like a slave of yore when slavery was legal because she has no escape route. Even the law is against her.

It is shocking to know that, in 21st century India, our law makers still consider women to be chattels. The world’s largest democracy — which has passed so many gender-sensitive laws — has not taken cognisance of the basic fact that, when a woman’s home turns into her hell, the law needs to be her strongest support.

For over half a century now, the rest of the world has understood this and criminalised marital rape. Poland passed legislation on this as early as 1932, Czechoslovakia followed suit in 1950 and the Soviet Union in 1960. Today, most countries around the world including religiously conservative ones like Ireland and Israel have passed laws criminalising marital rape. And so have many countries in Africa where it was “traditionally” considered acceptable for a man to have forced sex with his partner.

So why do our legislators still drag their feet, ducking under excuses of marriage being sacrosanct? How can a responsible member of the Rajya Sabha declare “it is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors — e.g. level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of society to treat marriage as a sacrament…”

Could he have even thought about it before making such a statement? Do poor illiterate women not have a right over their own bodies? In fact they are the ones who need the support of law because they do not have the strength or social support to resist acts of domestic violence. What kind of social values and customs permit forced sex within a marriage? And if they do, should they not be discarded along with the outdated “traditional” patriarchal practices like sati, streedhanam and female infanticide? Yes, for those who don’t know, there was a “traditional” routine even to kill infant girls.

When we could pass laws to end those anti-women traditions, why can’t we address this obvious one? Is it because our male-dominated legislature and judiciary cannot understand that a wife is a partner and not a possession?

The problem, I think, is within us. Many in our society still believe that a daughter is a burden because she is vulnerable to sexual abuse. In fact many parents even use that as an excuse for choosing not to have daughters. When they do have daughters, they want to “shed the responsibility” by getting her married off at the earliest to a man who they assume will be her “protector”.

But how many of these women actually find protection in their marital homes? One visit to a burns ward at a hospital or an NGO that shelters victims of domestic violence will reveal how brutal many of these marriages are. How ironic it is, then, to say that in such cases sexual abuse is not rape.

Our legal vocabulary also retains that archaic term “restoration of conjugal rights”, which almost seems to give legal sanction to spousal rape. How can the court order a spouse to submit to conjugal acts? Our movies and serials too often unthinkingly endorse marital rape. A woman who is raped has to be married off to her rapist. A sadist husband has to be “reformed” by his relatives and friends… he can never be dumped. In real life, women who are running away from brutal marriages are often advised by friends, family and even the police to go back and “co-operate” with their husbands and “all will be well.”

The flip side to this debate is that it has opened up the “traditionally” taboo subject of sex within a marriage. Something that we pretend doesn’t exist because women are supposed to be asexual beings with no agency over their own bodies. What recourse does a woman have if she is married off to a person whom she finds physically repulsive or if she has been coerced into marriage that involves a physical relationship she cannot tolerate? A man’s ultimate weapon is often sexual coercion. If he begins using this to punish his wife or subjugate her because she does not desire to have sex with him, she has no one to turn to.

One of the arguments being used is that women can misuse such a law if it came into force and they would file false cases of rape against their husbands. Yes, possibly. Because, like marriages, women are not “sacrosanct”. They too come with failings and virtues.

The point is any law can be misused. That doesn’t mean it should not exist. It is for the judiciary to carefully examine each case and also make proper suggestions so that loopholes can be plugged.