Marital rape is a burning issue which has been pushed between the sheets in India. MUSBA HASHMI brings you a report on how there is need to talk about it and the society’s need to broaden their horizon and see it as a punishable offence
A recent comment from Dipak Misra, former Chief Justice of India, during a Press conference shows how regressive Indians are when it comes to women. Misra said that marital rape should not be criminalised in India and it is an idea borrowed from other nations. “I don’t think that marital rape should be regarded as an offence in India, because it will create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values,” he said.
However, this is not the first time that such a comment has been made. Sir Mathew Hale, Lord Chief Justice of England in his History of the Pleas of the Crown (1736) has said: “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for, by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband which she cannot retract.”
Sadly, nothing much has changed since the repressive 17th century England. In 2014, a court in Delhi, recently, acquitted a man of raping his wife. It ruled that since the victim was married to the rapist, the attack could not be considered rape. In fact, it said that the act was not even rape. The victim had said that her attacker had drugged and married her in 2013 and then forced himself on her. The rapist (her husband) denied the charges. Justice Virender Bhat stated: “The parties being husband and wife, the sexual intercourse between the two does not come within the ambit of the offence of rape, even if the same was against the will and consent of the victim.”
This judgment reiterates that once a woman is married she doesn’t have the right to refuse sex with her husband which is in direct contravention of the principles of human rights. In other words, once married, the husband gets legal sanction to have sex with her — consensual or forced.
The National Database on Sexual Offenders contains 4,44,000 entries of rape cases that have been reported till 2018. But, there are no clear statistics that indicate how many marital rape cases have been filed or reported till now. The fact in itself is enough to show that how marital rape is ignored in our country.
Ajita Sharma, Advocate and practicing lawyer at the Supreme Court says it is discouraging to hear something like this from a prominent person from the judiciary. “It is discouraging to hear this comment from the former CJI. He shouldn’t have said it especially because he is known to be a pro-women judge, though his judgements are not well articulated but the perception is that he is pro-women judge. He has given the judgement on adultery and Sabrimala, so something more was expected from him,” she tells you.
Sharma says that most women don’t even realise that marital rape is a violation of their bodies. “Most women don’t see marital rape is wrong. They don’t realise that it is violation of their bodies. They don’t consider it equivalent to rape. They don’t see it as a crime. But when some women do realise that this is wrong they go to a hospital for treatment of injuries, if any. But still they will hide the fact and would not easily speak up about. They treat their physical injuries but completely ignore the mental injuries which marital rape has caused to them. Studies have shown that women who have faced marital rape, don't open up easily. It is only after sustained injuries and years of abuse when they finally speak up,” she says.
She recalls a case when a wife of prominent and powerful person spoke up about marital rape. “I have dealt with a case when a wife revealed that she has been a victim of rape and assault by his husband and in-laws. His husband has a lot of contacts with some prominent people from the judiciary, and is a powerful person. When she went on to register an FIR, the police did file an FIR but then they later said that she did not have a case at all. There was enough evidence for framing of charges against his husband, but the police was hostile towards her case because of his influence. So, even when women register cases against their husbands, the influence of the family which she belongs to does affect the case,” she tells you.
In such cases women are so traumatised that they just want to leave their homes. We live in a society where it is believed that ghar me sab sulajh jayega but this is not the case. It is only when these women have spoken to a number of people in the family and have tried every remedy at home that they want to move out and seek help. They are so much traumatised by that time that they want to leave their homes, but they can’t. These women go through psychological problems including stress. They tend to lose concentration in the daily household chores which again result in addition scolding by their family members. They are the primary caretakers of the house so if they are not in the right mental state then their children will also get affected by this. So, it is a mix of both physical and mental trauma that these women go through.
It is difficult to prove such cases because of the mentality of the people. First, it comes as a challenge to prove that is was rape and not consensual sex, in case of married couples. Second, is the attitude of the hospital staff in such cases. Three, the attitude of the society is that if you are married you automatically give consent to everything. Finally, the police is also not well-equipped when it comes to handling marital rape cases. Since, it is not criminalised in IPC and it comes as an exception, everyone asks you to settle the matter internally. The police is hostile towards such cases and they show a stereotypical behaviour where they ask you to go and compromise.
Sharma opines that is should be covered under the IPC section and it should not be considered as an exceptional clause in Section 375 of the IPC which states that “sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape”. “Marital rape should be seen as a violation of the body. The exception clause should be deleted and it should be considered as rape. Fines can be imposed on the accused as a possible remedy to prevent such crimes,” she says.
Marital rape survivors need proper counselling in order to get out from the trauma. “They need counselling from professional psychologists who can establish a sense of trust and make these women speak up. Women Rights commission can also help in such cases. Medical professionals should be trained enough that they can help out these women. It is not that they only need psychological help. They are economically dependent on their husbands so they need financial help too,” she tells you.
Kavita Krishnan, Secretary, All India Progressive Women’s Association also feels that it is difficult for marital rape victims to come across and speak up about their miseries.
“It is very difficult for women to speak up. They hesitate in filing complaints and reaching out to the police in such cases. The first and foremost thing that the women do is to try and change their husband's behaviour and persuade them to behave in a better way. So speaking up against this evil is the last thing they do. Since marital rape is not criminalised, women are discouraged to even talk about it. The whole social norm is that since he is your husband, he has a right over you and your body and you’re not supposed to speak up against it,” she says.
Creating public awareness about the issue is the key to tackle it. “We as a society should step up and create awareness about the issue that it does exist. National Family Health Survey data shows how such a large number of men and women who believe that domestic violence is not wrong. In this scenario, this mentality of the people has to be changed and it is the biggest challenge. Changing the law of marital rape is just a smaller part, the bigger change needs to come from the society,” she tells you and adds that proper counselling services for the survivors of domestic violence should be embedded in the society, where these women can go and seek help and counselling from.
In India, a woman is seen as a sex symbol who is available all the time for the man. After marriage, the man gets a stamp of approval to have sex with his wife whenever he wants, irrespective of the wife’s wish. This is because our society is such where the women have no say, no individuality, especially once they get married. A woman in such a situation is not expected to say no. to sex. The problems get compounded in situations where the family forces a lesbian to get married; it is even more difficult for such a woman to come to terms with having sex with her husband.
Take a case in point. A 21-year-old was married off to a 35-year-old. husband would tear her clothes and force himself upon her. If she refused, forced sex would be followed by violent thrashings. It was not that this girl refused to have sex with him all the time. But there were times when she did not want to. The husband could not understand how his wife could refuse him his conjugal rights.
While the 21-year-old may have got a reprieve another homemaker in Delhi doesn’t have it so easy. It has been years of physical abuse — mainly forced sex. She discovered early in her marriage that her husband was an extremely suspicious man. He would call up from work on the home landline to check whether she was at home. When they would go out for parties and she would speak to a man, the husband would get violently angry. Slowly, he started beating her up whenever he saw her talking to a man, even the colony’s security guard. And then he would want to have sex. Having sex with a man who had just beaten her up repulsed her. She got no help from her parents who blamed her. Going to a counselor is not an option. Her husband would only beat her more. She lives for her son.
Pooja Sareen, Advocate, Litigator and speaker says that marital rape should be a punishable offence.
“The former CJI made such a statement because he knows that the whole scenario had undergone a complete change today. There is one strata of the society, which is lower middle class — the dominated oppressed, downtrodden and exploited class, where the females are not given their basic right of education and the right to even choose their clothes. They are yet in chains and under the ageold shackles of conventions and traditions, where rape is a taboo and females should not speak about it. This is where the preventive measures should be implemented. Then there is another strata of the society, where the females are in power. They belong to the elite class, they want to divorce their husbands just for the sake of big alimony, they fabricate the in-laws for the small reasons. That is why you see there are so many modifications in the existing laws. Justice should be given to the righteous, be it man or woman. Marital rape, is a rape is and it should be punishable. But if fabricated, the culprit should also be penalised, considering the stakes and the grounds,” she tells you.
In the last few years many things have changed when it comes to the rights of women. “Since last few years, there have been many amendments made in the existing laws — live-in relationships have been legalised, and moreover the child born out of the relationship is entitled to have all the legit rights. Article 377 is decriminalised, liberating the same sex, to live and love by their free will, the transgender bill got passed, allowing and enabling a social space and right to various opportunities for them. Change has been driven at a grass root level. Females have been given more rights, liberty to live the way they want. The Policy for Prevention of Sexual Harassment Act of 2013 has been made more stringently effective in all workplaces, securing and safeguarding women’s right to work in a safe environment. Judiciary has always given more importance to women rights and their empowerment,” she tells you and adds that fabricated cases of marital rape or others, also exist.
“Yes, fabricated cases do exist, reasons could be many — avenging the revenge, is the most common, else than that personal animosity, settling the scores, psychic disorders are a few others,” Sareen says.
She opines that the judiciary is doing their part, it’s time for the people to broaden their thoughts and be able to find out who is the real culprit.
“Judiciary is doing it’s bit, we need to broaden our horizon. Women are not right and just every time, sometimes it can be vice-versa. There can be malicious complaints against the men as well. We should empower the weak women and also ensure that the equilibrium is maintained, so that no one is exploited. A male also has equal right to seek justice just like the females,” she tells you.
Today, over 104 countries across the world, some being New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Russia and Poland, have criminalised marital rape. It is also an offence in many States in the US and Australia. India, of course, is not among these nations.
Till marital rape becomes a criminal offence in the country, men will continue to literally get away with rape.