What about marital rape?

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What about marital rape?

Monday, 09 December 2019 | Rinku Ghosh

What about marital rape?

Till we internalise the concept of marriage as one of equal partnership and not just about legalised sex, abuse within it won’t even be considered a problem

They are rape survivors, too. Perhaps the most neglected and traumatised among women in our country. Yet they do not draw eyeballs, nor are they allowed to speak up. There is no law to help them. Nobody rages over them simply because their horror and humiliation aren’t dramatic enough to get a whole nation to turn vigilantes overnight or simply because they have become too normal compared to the abnormal excesses of a Nirbhaya or a Disha. They have the pain of an old wound, which becomes unbearable at times but then dulls out as one of life’s many humiliations that you learn to live with. Yet they are brutalised daily in their own homes, by the men they are supposed to trust the most, their husbands. So there is no triumphalism in rescuing them, simply because they are in the custody of spousal security. Hence, they are best forgotten.

Marital rape, which can be as gruesome when it comes to bestial practices, if not more, is hardly ever up for discussion. This despite the Justice JS Verma Committee recommending that it be criminalised while reviewing rights protocols post Nirbhaya. Yet it continues to be the darkest cloud over a woman’s autonomy on her own body, her choice, her free will and her right to say no, simply because her consent is believed to have been implied, nay signed off, in her marital status. Worse, marital rape is the least reported of sexual violence against women in police files. According to some estimates, 99 per cent of such cases are not reported. Some studies show that the average Indian woman is 17 times more likely to face sexual violence from her husband than from others. Even among aware women, in high literacy States like Tamil Nadu and Karnataka, reporting of violence is dismal. So consider the disfranchisement of women when it comes to States that have a low female literacy, awareness and empowerment. In States such as Bihar, Uttar Pradesh and Jharkhand, less than 0.5 per cent incidents of violence against women were reported.

While unwilling sexual contact between a husband and a wife is recognised as a criminal offence in almost every country of the world, India is one of the 36 nations that still has not criminalised marital rape. Rape, as defined in Section 375 of the Indian Penal Code, includes all forms of sexual assault, involving non-consensual intercourse with a woman. However, Exception 2 to Section 375 exempts unwilling sexual intercourse between a husband and a wife over 15 years of age though in a recent judgment, the Supreme Court criminalised non-consensual sexual contact with a wife between 15 and 18 years of age. This has opened the floodgates of appeals to challenge the entirety of Exception 2 as a whole. This is particularly gaining traction as it undermines Article 14 of the Constitution, which guarantees equal rights to all citizens.

And for all empowerment initiatives by the Government, the fact of the matter is that they are governed by the old patriarchal mindset of deciding what a woman needs, an imposition of grants and doles from the male gaze rather than respecting the most basic of human rights, that of a woman’s mind. And till this thinking changes, we will continue to be known to the world as a “Rape Republic” than a “Republic of Women.” Till we revise the concept of marriage as one of equal partnership, prize it as a long-standing companionship and not just about legalised sex, marital rape won’t even be considered a problem.

The societal bias is so deep-rooted that even the educated elite is not immune to certain assumptions. And the prolonged silence of women has come to be interpreted as their acceptance. Most men confronted with questions that they might be forcing themselves on their wives usually come up with a predictable set of replies or counter questions. Doesn’t by virtue of agreeing to marry, a woman give her perpetual consent to sexual relations? Nobody asks if she wants it or not on her terms. Why marry if she is uncomfortable with the idea? Nobody understands that sex is just a sub-set of the entirety of vows made by a man and woman. Isn’t it better that sexual relations are with the wife instead of another woman? So loyalty and infidelity have come to be dependent on a man’s right to the basest form of gratification like an on-demand service. Why should sexual incompatibility not be seen as a problem? Because it is not, it is a process of adjustment and can be solved. Do men realise that they may be raping their wives? No. It does not amount to violence against women.     

Such cultural conditioning is so deeply embedded in our DNA that it has over the years resulted in discriminatory laws, biased behaviour, skewed relationships and a severely gendered view of marriage as an institution. Even family members confine marital rape to a simple relationship hurdle between man and wife rather than looking at it with the seriousness it deserves. Despite consistent debates on criminalising marital rape, its critics deny the need for legislation saying a woman’s concerns were well protected under Section 498 A and the Domestic Violence Act. Fact is both deal with an umbrella of abuse and not sexual violations per se. The Domestic Violence Act provides for civil, not criminal redress. Counselling works when there is an acceptance of guilt, not in its denial. Besides, Section 122 of the Indian Evidence Act prohibits disclosure of communications during marriage in court unless one spouse is being prosecuted for a crime against the other.

Some degree of offensive and aggressive behaviour by the husband has been normalised by society as a male habit that married women are expected to internalise. The justice system, too, as a product of society, becomes wary of interfering in what is unofficially considered a private territory of a man-woman relationship. In unitising a marriage, it overlooks an individual’s rights, sovereignty and most importantly the woman’s inviolability. It is also the easiest way of stifling her demands for economic rights in her marital home, particularly in the rural scenario.

Without any legal prop of reassurance, abused women simply clam up for fear of being disbelieved, insulted, joked about or abused further. Violence, therefore, becomes a tool of power play, of negotiating a woman’s place in society on a man’s terms. Assaulting her body becomes the easiest way to subjugate her self-worth. In fact, in a horribly lopsided template, we are pushing  girls’ rights to education and a healthy life, yet clipping them when it comes to their marital rights, subsuming them to the will and exploitation of their husbands.   

As per the Constitution of India, every law which is passed must be in conformity with the principles and ideas as enshrined in the Constitution. Any law which fails to meet its required standards can be considered ultra vires, struck down or be declared unconstitutional. Therefore, we need to acknowledge marital rape. Would India, which is positing itself as an emergent power, want to be bracketed with countries where marital rape is permitted by law, namely Ghana, Lesotho, Oman, Singapore and Sri Lanka, according to a study by Equality Now?

What of our lawmakers, whom we have empowered to change our systems? They only take us back to putrid medievalism in the name of holding up Bharatiya sanskar. Consider the following remarks made across the political spectrum. For former Bihar Health Minister Mangal Pandey, “virgin” means the same as “unmarried” and “pure”, implying that married women do not qualify for discussion. In April 2014, while opposing death penalty to three men convicted in a gangrape case, former Samajwadi Party supremo Mulayam Singh Yadav had said, “Boys will be boys, they commit mistakes.” And that endorsement continues when they become men. In 2013, Congress general secretary Digvijaya Singh crassly described  Meenakshi Natarajan, party MP from Mandsaur, as a “sau tunch maal” or a desirable object. In 2013, Rashtriya Swayamsevak Sangh (RSS) chief Mohan Bhagwat had said rapes were an urban crime caused by Westernisation and do not happen in rural India imbued with traditional values. And in 2012 itself, Haryana’s former Chief Minister Om Prakash Chautala sanctified marriage as the best armoury of women’s honour and justified a khap panchayat’s advocacy of child marriage, saying, “People used to marry their girls to save them from Mughal atrocities.”

We are still horribly gendered in our thinking and depending on the evolutionary scale in society, each stratum still sees women as negotiable tools of fantasy, desire and even sadism. Men know they can legitimise all of them within the “sanctified” construct called marriage. Yet it is the most desanctified space for women, simply because in no other role is a woman presumed to be so subservient.

(The writer is Associate Editor, The Pioneer)

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