CHENNAI: The Justice Verma Committee, in its report submitted in 2013, recommended that the exception to marital rape be removed. It recorded that marriage should not be as an irrevocable consent to sexual acts and given that the complainant’s consent is absent, the relationship between the two parties should not matter. Nearly nine years down the line, the exception to Section 375 (rape) of the Indian Penal Code still remains. “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” The panel of lawyers and activists that gathered on the behest of Prajnya 16 Days Campaign Against Gender Violence dwelled on this – Does Marriage Mean Consent?
Audrey D’mello of Majlis (legal centre for women in Mumbai) points out that Indian law is not without provisions to address this. “It does get an exclusion under Section 375. However, in 1983, we got a law on cruelty to wives; Section 498A says that any cruelty — physical or mental — by the husband on a woman is a crime and is punishable with three years of imprisonment. The definition of physical cruelty would also include forcing her to have sex,” she pointed out.
While the merits of this provision over the effects of the exemption offered by Section 375 is debatable, how much have current legal provision actually helped women seek justice? From her experience at Majlis, Audrey reveals that it is not often that women seek punishment for the abusers; their primary concern tends to be relief and reparation. “What they were saying is that they were facing abuse but the situation is that their husband was refusing to maintain them; over 90 per cent of our cases involve women articulating this need,” she shared.
Much has been said about the role of control that marriage has in our deeply patriarchal society and it doesn’t take much imagination to understand why women may put financial support, familial peace and childcare over their own wellbeing. But it is not as simple as re-evaluating one’s priorities. The more severe the punishment, the more unlikely it is that women are going to come forward to complain about people they know, surmised Audrey.
Going through the history of various law commission reports and recommendations of committees set up under various Supreme Court Justices, lawyer Jhuma Sen suggested that the one thing that can be done is the removal of the exception offered in Section 375. “(Marital rape) is not necessarily seen as a crime in a matrimonial. It is going to be unlikely scenario where a wife will file a criminal case if there is a criminal law. Removing the exemption will mean that your husband is not protected by Section 375,” she suggested.
On her part, Saumya Uma, professor of law, said that the sexual and bodily autonomy of women, particularly married women, is impacted by all this. “If you do not remove that exception, it signals that women’s consent to sexual intimacy is irrelevant within the marriage and that husbands have unlimited and unrestricted access to the wife’s person. That has been a demand for law reforms. But criminalising marital rape may strengthen the arm of the state without providing any real redress for women, at a point where we are at a stage of hyper criminalisation,” she cautioned.
While further criminalisation is still a big debate, the demand to repeal the exception is to remove the normative status it reinforces. It is also important from the point that the law, contrary to earlier positions, has made it clear that it is ready to interfere in the affairs of the home with the introduction of Section 498A and provisions for domestic violence, she concluded.