If Twitter is to be considered as a parameter for common sense, it is inevitable that logic and peace of mind would take a backseat. As the debate around marital rape gets louder, there certainly lies a world beyond mature discourse. This fortunately or unfortunately comes out in the open on the internet. The recent #marriagestrike was but a laughable example of that.
India is one of the few countries that does not criminalise marital rape. And while the cacophony surrounding this topic attempts to validate itself under the veil of ‘constructive debate’, it is important to understand what women have been going through in the past.
The reality is certainly odious. It is a known fact that cases of domestic violence rose during the course of the lockdown. This brought to the fore some uncomfortable questions which we cannot turn away from, anymore.
Although section 375 of the IPC, drafted by the British in 1860, terms sex without consent as rape, there are two exceptions to it. The first being “a medical procedure or intervention shall not constitute rape”.
It is the second exception that many believe turns this law powerless in front of a woman’s plight. That “sexual intercourse or sexual acts by a man with his own wife when the wife is above 18 years of age would not constitute rape”, is a dangerous proposition.
The psychological effects of going through something like this are multifold. Those questioning why women do not come forward to report these cases should know that there is nothing to report here. “Largely, women feel that the man has a right to her body. This is believed to be a ‘normal’ phenomenon,” says Dr Harish Shetty.
“This exception is based in the archaic legal principle of “doctrine of coverture”, under which a woman’s legal rights and obligations are subsumed by those of her husband. The UK laws, from which we adopted this principle, have long since been updated, criminalising marital rape back in 1990. Unfortunately in India, due to this legal complexity, even the National Bureau of Crime Records does not maintain data on cases of marital rape,” explains Anisha Gopi from Nyaaya.
Shetty says the angst of the pandemic and irritability that followed created a “murderous cocktail”.
If the general consensus continues to not give credence to the fact that marital rape exists, one cannot expect anything else but silence on their part. “The transition from the old normal to the new normal where they can say no is a difficult experience for women. Cultural, religious and local ideologies play a part. The feudal philosophy and stark patriarchy adds to the scare,” adds Shetty.
Sanam Singh, lawyer and advocate Delhi High Court, who works for People Against Rapes In India (PARI), says consent is certainly not understood by many. “Marriage is not a life-long consent to perpetrate violence and rape. When sexual relations are forced on a wife by her husband, against her will and consent, it is marital rape. This must stop and the exception of s.375(2) IPC must be removed,” she says.
Those riding roughshod over voices asking for this basic right need to realize the ramifications that it has on the society. “This deters women from reporting such cases, as it indicates the position of society and lawmakers vis-a-vis a woman’s autonomy and agency over her body versus the institution of marriage,” says Gopi.
“From mother to daughter, one generation to the next, we are taught to suffer in silence and give in and not to stand up to our husbands (often the breadwinner and in control of a family’s finances). Another major reason women don’t report rape, molestation, sexual assault, is the personal nature of such a crime,” says Singh.
The pushback to this comes from those who feel this law can be misused to entrap the husband in a false case.
“Those raising concerns about increased possibility of false accusations, if the exception is revoked, should know that there is little merit to this besides an attempt to question the credibility of the survivors, which in itself a challenge in today’s times as is seen in the Bishop Franco case. Incidents of sexual violence by spouses can only be reported under the Protection of Women from Domestic Violence Act, 2005. Criminalising marital rape will empower women to raise their voices against the social stigma and backlash associated with calling out their husbands for rape,” adds Gopi.
In a situation like this, the #marriagestrike was perhaps a blessing in disguise. “If a man does not want to be an honourable and protective husband, let him not get married,” says Singh.
Gopi adds that to connect this to “family values” does not even warrant a disputatious engagement between the two sides because of how inutile this argument is. “Removing this exception is seen as a threat to the ‘institution of marriage’. This is a worrying perspective, as it reveals that the dominant mindset continues to view wives as subservient to their husbands and the choice and consent of married women being immaterial,” she says.
To say that a law can be misused is to look at this development captiously. “One thinks that removing this exception will open the floodgates for false prosecution against husbands. However, potential misuse of a law cannot be the basis for denying the protection of the law to almost half the population of the country. Indian women deserve better protection from the law and its guardians,” Gopi concludes.
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