Marital rape: Image for representation only. (Photo:iStock)

Years before human resource development minister Smriti Irani traded popularity for power, she had managed to strike a balance between tradition and reason as Tulsi, the face of Kyunki Saas Bhi Kabhi Bahu Thi, one of India’s most-watched and longest-running soap operas. In one particular episode of the family drama, Irani’s character created a rift in the family when she stood up against her son Ansh for raping his wife Nandini.

Though the depiction of marital rape on prime time television had received mixed reactions, it is impossible not to appreciate Tulsi’s courage in standing up against a son to protect the dignity of a daughter-in-law. In real life today, though, Irani might find it difficult to exhibit similar courage and go against the government’s less-than-empathatic stand on the issue of marital rape.

Responding to a question in the Rajya Sabha last month, minister of state for home, Haribhai Parthibhai Chaudhary said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context.” One of the reasons cited was that marriages are treated as a sacrament in the country. The government’s stand follows a recommendation to criminalise marital rape by the United Nations (UN) Committee on Elimination of Discrimination against Women. Though countries in Europe and the US started criminalising marital rape in the last century, in India, rape within marriage by a partner continues to not be a criminal offence. “Marital rape is an offence under the Indian Penal code when the husband and the wife are separated though still married to each other under section 376B of the Indian Penal Code,” says senior advocate and former additional solicitor general, Indira Jaising.

A man can also be accused of rape for having sexual intercourse with his wife if the wife is below 15 years of age. But as senior advocate Rebecca John points out, the clause in itself is a contradiction since the legal age of marriage for women in the country is 18 years. The same is true for the age of consent to sex by women.

In the aftermath of the Delhi gang rape of 2012, the Justice Verma Committee, set up to review laws against sexual assaults on women, had said that “the law ought to specify that marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation”. But the government had even then failed to act on the committee’s recommendation. The government’s blinkered view of the sanctity of marriage in Indian society is especially disturbing when viewed through the filter of facts. In a seven-state study on ‘Masculinity, Intimate Partner Violence and Son-Preference in India’ by United Nations Population Fund (UNFPA) and International Centre for Research on Women (ICRW) published in 2014, nearly one in five women interviewed spoke of having faced sexual violence from a partner in an intimate relationship.

Indira Jaising, Senior Advocate: There is a real fear of the law among men for the reason that law confers rights and can be enforced, it is not like a khap panchayat when things can be contained within the family or the panchayat so as to protect the honour of the abuser.

“For generations, women have been given in marriage. Once married she is viewed as property that belongs to her husband and his family. A woman’s right to her body is not recognised,” says Ranjana Kumari of the Centre for Social Research. It is this idea of marriage as a symbol of patriarchal control over women or as advocate Vrinda Grover puts it, “as not a relationship between two equal partners but an institution used to create dominion over women, particularly control over their sexuality and labour” that most rights groups find problematic. That marriages in India are still by and large looked upon as a license for sex might also have something to do with the issue. “It is this whole suhaag raat concept. Even in a situation where we have a predominance of arranged marriages, the first night is all about what you did rather than about getting to know each other. It encourages a man to have unlawful expectations from his wife,” points out John.

As in the case of 37-year-old Rashmi (name changed on request). Married in 1997 at the age of 15, Rashmi’s travails started after her elder son was born. “My mother-in-law and husband started putting pressure on me to get money from my father. If I refused they would abuse me,” recalls Rashmi. Then started the sexual assault. “He would beat me up and then demand sex and force himself on me when I didn’t want it. Often, he would force me to have sex with him in front of the children,” she says. Rashmi was divorced in 2005 and has now remarried. “In many communities, women experience shame and guilt in reporting violence within their marriage or intimate relationships; they are fearful of the consequences of reporting violence, especially as many women are dependent on their marital home for shelter and economic support. Women may also under-report violence as some believe such acts are a “normal” aspect of the male-female relationship,” says Frederika Meijer, UNFPA representative.
(Photo: iStock)

In 2014, additional sessions judge Dr Kamini Lau denied bail to a man accused by his wife of raping her, subjecting her to unnatural sex and also taking her nude photographs. “Non recognition of marital rape in India is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women,” she was reported as saying. What must have helped Lau in this case was that it was covered under some existing laws – like the one for unnatural sex. In February 2015, however, the Supreme Court refused to entertain a woman’s plea to declare marital rape a criminal offence saying it wasn’t possible to order a change in the law for one person. “The Constitution of India guarantees equal rights to men and women. But by taking away a woman’s right to say no to forced sexual activity within a marriage you are denying her the most  fundamental right of self determination over her own body,” says Grover. Human rights activists worry that rape by a partner may have more damaging long-term consequences than when the abuser is an outsider.

“When women experience coercion and violence within relationships, it violates their fundamental right to live in safety, security and with dignity. An intimate relationship, particularly marriage, should be a space of mutual trust and respect,” says Meijer. The UNFPA study also found that “the propensity to perpetrate and tolerate violence is often determined by childhood experiences of abuse: men and women who experienced childhood discrimination, who have suffered abuse and witnessed gender-based violence in their homes and as children, are far more likely to perpetrate and tolerate violence as adults.” Laws alone can’t make a difference. “It is important to work towards the empowerment of women, politically, socially and economically. We need to start young in engaging with boys and girls in addressing gender stereotypes and redefining notions of masculinity,” says Meijer.

In Northanger Abbey, Jane Austen held a mirror to the position of women in eighteenth century England, when she wrote, “Man has the advantage of choice, women only the power of refusal.” Married women in twenty-first century India are yet to get that power of refusal when the man in question happens to be her husband.

There is an uncomfortable buzz at the office of the Save Indian Family Foundation (SIFF). As if the Protection of Women Against Domestic Violence Act and laws to protect her from sexual assault weren’t enough, “the feminists” are now demanding the criminalisation of forced sex by a man with his wife. “Coerced sex with wife, husband or a regular sexual partner is not rape,” says Rajesh Vakharia, president of SIFF. Vakharia insists that the volunteers of SIFF have come across thousands of cases where the wife has abused or hit the husband for refusing to have sex. Murmers of a law against marital rape being misused by women, especially in the case of an acrimonious divorce are getting louder. “A law against marital rape will give many the scope to lodge false complaints and might destroy the fabric of family life in the country. How does one prove in court that one night sex was consensual and the next night it was rape?” wonders New Delhi-based criminal lawyer Vikas Gupta.

The very tone of Gupta’s comment is distasteful to right activists. “Sexual abuse is rarely carried out in isolation. It is usually accompanied by other forms of physical and verbal abuse. Also, often sexual abuse goes beyond forced sex with the partner, to forced abortions or forcing the partner to have sex with other men. It is a pattern and so anyone who thinks it’s a case of one-off coerced sex does not understand the magnitude of the problem,” says senior advocate Rebecca John.

Agrees advocate Vrinda Grover, “Whenever there is a movement to increase a woman’s access to justice, people who are afraid of women being empowered start talking about the misuse of law.” Men are not the only ones who don’t see the need to criminalise marital rape. “A law against marital rape will not liberate women. One has to look at the problem in a more comprehensive manner. Sexual abuse is never carried out in isolation. It is accompanied with verbal and physical abuse. We have a both a civil and a criminal law against domestic violence. We need to make the law more accessible to women and create a support system for victims,” feels women’s rights lawyer Flavia Agnes.

Forced sex is a form of domestic violence covered under the domestic violence Act. But as Grover points out it is a civil law and only offers protection to the victim, but no scope of punishing the perpetrator, which is why a criminal law against marital rape is needed. That the nature of the crime is such that it will make proceedings difficult is accepted. “There will be evidential complications. It will require a very nuanced understanding of the law and the situation. It is a complex situation. So rather than behaving in an escapist manner and not having a law at all, what we should do is form committees to look at systems across the world to come up with a law that can best address the situation here,” says John.

Meanwhile, SIFF is ready with an alternative – as well as a charter of demands. “If any violence is involved, then such a crime can be tried under the existing Section 323 of Indian penal code. The accused must be presumed innocent until proven guilty. The burden of proof must remain with the complainant. The complainant must provide with the evidences and establish that the crime has taken place,” says Vakharia.