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When even rape is legal #Vaw

SHAME: “If there is legal backing for to marital rape, this means that women who are victims of sexual assault by their husbands have little hope for justice.” Picture shows a protest against the gang rape of a minor girl in Haryana, at Jantar Mantar in New Delhi.
Photo: The Hindu

SHAME: “If there is legal backing for to marital rape, this means that women who are victims of sexual assault by their husbands have little hope for justice.” Picture shows a protest against the gang rape of a minor girl in Haryana, at Jantar Mantar in New Delhi.

Some debates appear to be timeless. Today’s raging debate on marital rape in India echoes arguments that go back more than 125 years ago to the Phulmani case when a 11-year-old Bengali girl died after being brutally raped by her 35-year-old husband. The colonial government then proposed to increase the age of consent for sexual intercourse for a girl from 10 to 12 years. But some of India’s most prominent leaders opposed the measure, and the Age of Consent Act was passed only in 1891, after much acrimony and argument.

Reflecting on this debate, Dr. B.R. Ambedkar said in 1943 (http://bit.ly/17fGw2O): “It is impossible to read the writing of those who supported orthodoxy in their opposition to the Age of Consent Bill, without realising the depth of the degradation to which the so-called leaders of the peoples had fallen… Could any sane man, could any man with a sense of shame, oppose so simple a measure? But it was opposed….” Dr. Ambedkar would have been as appalled by today’s arguments against the criminalisation of marital rape.

A warped defence

According to Section 375 of the Indian Penal Code, which defines “rape” and “consent”, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. Sexual intercourse can take place with or without consent, but because of the above exception, the latter is legalised within marriage by Indian law.

The warped defence for this exception continues in spite of overwhelming evidence that marital rape is the most common form of sexual violence in India. The National Family Health Survey (NFHS) in 2005-06 (http://bit.ly/1n9ub6H) posed questions to over 80,000 women between the ages of 15 and 49, on sexual violence by husbands and other men (http://bit.ly/1KmUmjh). Sensitive questions such as “did your husband ever physically force you to have sexual intercourse with him even when you did not want to?” are difficult to ask in a survey; hence informed consent for the violence module was obtained twice, and trained interviewers were given strict instructions to ensure complete privacy of the respondents. The answers to these questions are available in the last chapter of the NFHS report. (http://bit.ly/1IsAYPH).

Data show that 8.5 per cent of the surveyed women (one in 12) said they had experienced sexual violence in their lifetime. Almost 93 per cent of these women said that they had been sexually abused by their current or former husbands, while only 1 per cent said that they had been sexually abused by a stranger.

In a recent working paper (http://bit.ly/1e0pIA0), we made a comparison of the above data with the reporting of sexual violence to the police, based on National Crime Records Bureau statistics. The analysis found that less than 1 per cent of the incidents of sexual violence by husbands were reported to the police.

If there is legal backing for marital rape, women who are victims of sexual assault by their husbands have little hope for justice. The exception in the law needs to be repealed urgently, as recommended by the Justice Verma Committee in 2013. The committee argued that the “relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity”. The law on rape in India has evolved to place the burden of proof of consent on the accused, and these provisions are even more important for women facing sexual violence within marriage because married women are more likely to face social sanction for reporting violence. Also, Section 498A specifies only mental and physical abuse under its “definition of cruelty by husbands and in-laws”. An amendment would include sexual abuse.

Positions of political parties

Even though there is little hope from the current government, the political class could do more in this respect. The present controversy was stirred when Rajya Sabha MP Kanimozhi asked the government if it plans to bring an “amending bill to the IPC to remove the exception of marital rape”, to which the Minister of State for Home Affairs Haribhai Parathibhai Chaudhary reply was that the government had no plans to do so, as marriage is a sacred institution in India. It is time to ask the government if it at least accepts its own survey’s data on sexual violence by husbands. The opposition, in a majority in the Rajya Sabha, could pass a private members’ bill amending the IPC. Political parties could put the criminalisation of marital rape on their election manifestos.

While the Protection of Women from Domestic Violence Act 2005 provides civil remedies such as shelter homes, medical facilities and monetary relief to victims of sexual violence by husbands, legal clarification will go a long way towards recognising and reducing the problem.

But we would be fooling ourselves if we believe that the problem can be solved merely by removing the marital rape exception. A much bigger challenge is to change the patriarchal social norms. In the NFHS survey, for instance, when the women were asked if wife beating is justified, 54 per cent said they believed it was. Clearly, the law alone cannot change mindsets.

We realised this when we worked with a minor Adivasi mute girl in Madhya Pradesh who was gang-raped. She was covered by many laws: Section 375 and 376 (rape provisions) of the IPC, Protection of Children from Sexual Offences Act (POSCO) 2012, as well as the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The local police, however, were reluctant to invoke the SC/ST Act, and did not know about the existence of the POCSO Act. Despite its being banned, the girl was subjected to the “two-finger” test in the medical examination. The law is an important means of enabling social change, but without a wider change in social attitudes,it can be quite ineffective.

In 1943, Ambedkar regretted that “political reform” had taken precedence over “social reform”. Despite this, he continued to seek both legal and social changes to improve the lot of India’s Dalits and women. Today, what is getting priority is economic reform, but we would do well to remember Ambedkar’s words from the same address: “Rights are protected not by law but by the social and moral conscience of society… if fundamental rights are opposed by the community, no Law, no Parliament, no judiciary, can guarantee them in the real sense of the word”.


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