The Delhi High Court is hearing a batch of petitions filed by NGOs RIT Foundation and All India Democratic Women’s Association (AIDWA), a man and a woman seeking the striking down of the exception granted to husbands under the Indian Penal Code (IPC). The challenge for the court is to dissect the constitutional validity of the ‘marital rape immunity’.
The case has yet again shifted focus on crucial subjects like consent, the extent of state control on female sexual autonomy, and nullify a clause in a colonial-era law—Exception II of Section 375 of IPC, 1860, which exempts the concept of marital rape. “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape,” says the law.
In all this, it is also a challenge for the petitioners to make people comprehend what is marital rape in a country where religion plays an important role and a majority of Indian religions do not consider it as a subject of discussion.
There is no provision or law against marital rape in the major religions practised in the country. The Morning Standard got in touch with subject experts and religious leaders from the six widely practiced religions in India—Hinduism, Islam, Sikhism, Christianity, Buddhism and Jainism—to find out whether each religion recognises the concept of marital rape, and if not, then why.
Hinduism
“This concept is new in our culture and I have not heard anything like this before and is a new discovery to us. Nothing of this sort has been described in the (Hindu epics) Ramayana, Mahabharata or the Vedas,” says Mahant Surendra Nath of Kalkaji Temple, New Delhi.
Brahmachari Dayanand, seer at Matri Sadan ashram, Haridwar, says the relationship between a husband and wife in Hinduism is a pious union. “Our religion does not recognise marital rape. We have never witnessed such a case. However, we consider a woman to be ‘Goddess Laxmi’ and it is the man’s responsibility to keep her happy. If she is unhappy then the family is bound to be doomed,” says Dayanand.
The seer says that Garuda Purana, which is part of Vaishnavism literature corpus on Hindu god Vishnu, has a strict punishment for rape but does not have anything for marital rape. He says one cannot peep into what happens within a family. “How can we ascertain what happens between a couple? Who will find out what the truth is?” adds seer Dayanand.
According to All India Democratic Women’s Association (AIDWA) President Malini Bhattacharya, marital rape is not about religions but the observances in rituals of various religions. “We are not talking about religion; we are talking about the observances, the rituals in various religions and sects. For instance, in Manusmriti (Sanskrit for Laws of Manu, the most authoritative of the books of the Hindu code, we find the question of the basic rights of individuals is not there. What we have is a system and space for women and it is god-given and you can never get rid of that space and go beyond,” Bhattacharya adds.
Malini further says that the question of how much space is being given to a woman varies from time to time from country to country. “In all systems of religious conventions, women have a subordinate position. Monogamy is used to ensure the male line. Religious conventions are not eternal and vary as social systems evolve. To speak of women’s rights we have to come outside the religious discourse and understand its social underpinnings,” she adds further.
Advocate Raghav Awasthi, appearing for a petitioner in the marital rape case being heard in the Delhi High Court, says there is no reference to immunity being granted to husbands for rape committed against the spouse in Hindu smritis (Sanskrit for sacred literature based on memory).
“As a practicing Hindu, I unequivocally feel that marriage ought to be treated as a sacrament. However, in my extensive reading of all extant Hindu smritis and other sources of Hindu law, I did not find any reference to immunity being granted to husbands for an act of rape committed against the spouse. Our culture, in its pristine glory, celebrates the exercise of choice by a woman in matters of selecting a partner, as well as sexual autonomy,” says Awasthi. “It is unnerving to see India continue with this colonial-era law on our statute books, even though it has been dumped across the developed and the developing world,” he adds.
India’s neighbour Nepal, a Hindu-dominated country, criminalised marital rape in 2006 and made amendments in its national civil code, Muluki Ain that is rooted in traditional Hindu laws. The Muslim-dominated neighbour on the western front, Pakistan, changed the definition of rape, and recognised marital rape as a criminal offence after the passing of the Women’s Protection Act 2006. However, with sex viewed as a taboo here, very few such cases have reached the courts.
Islam
In India, the majority of Islamic experts do not recognise marital rape. “We do not have any provision on marital rape in Islam. If a husband demands sex, it is the responsibility of a woman to keep him happy and vice versa,” says Maulana Syed Arshad Madani, President, Jamiat Ulema-e-Hind. He adds that he has never come across any such case so far but says that when a man and woman become husband and wife no such situation can arise. “They have a right to each other. However, men should also consider the health and mental condition of their wife,” he adds.
However, unnatural sex and extramarital sex is prohibited in Shia and Sunni, the two main sects of Islam. According to Dr. Mohammed Raziul Islam Nadvi, Secretary, Sharia Council of Jamaat-e-Islami Hind (JIH), if a woman comes forward and files a complaint against her husband claiming harassment by unnatural sex and extramarital sex, the Islamic court will take note of this and will try to resolve the matter. “If the husband wants sex and the wife is unable to provide it, the Islamic laws will not favour her as it is the duty of wife to keep her husband happy,” says Dr. Nadvi.
Sikhism
A similar sentiment was expressed by BJP leader and believer of Sikhism, Manjinder Singh Sirsa, who says the situation of marital rape cannot arise between a married couple. “Husband and wife are like two bodies with one soul and both have equal status. In our society, we try to resolve issues at home instead of going to court,” adds Sirsa.
Contradicting this viewpoint is Giani Harnam Singh Ji Khalsa, Head Granthi of Gurudwara Sis Ganj Sahib, New Delhi. The religious leader says, “Guru Nanak Dev had said how can one insult/hurt women when they are the ones who have given you birth? If the marriage between a husband and wife is not working out and the husband is cruel, the woman can divorce him.”
Christianity
In Christianity, nullification of a marriage is acceptable if the husband is brutal to his wife, says Father Stanley Kozhichira, President of Signis India (World Catholic Communicators Association). “Marriage in the church is a sacred union which a man and a woman form in complete love. The church has never come across a situation where a man is accused of marital rape. In every church and diocese, we have cannon (church) laws. There are situations where we have dealt with aggressiveness from the men in marriages. We study the marriage and find out the reality. If needed the couple divorce in accordance with the cannon law,” he adds.
Buddhism
According to Dr. Sonam Wangchuk, Founder of Himalayan Culture Heritage Foundation, Ladakh, Buddhism is based on five precepts on how to live your life. However, he adds that the religion has not viewed marital rape in its entirety but is completely against violence in all forms, and that non-violence forms the core of the Buddhist belief system. “The only solution to such an issue in Buddhist philosophy is providing counselling. Punishment is of no use,” says Dr. Wangchuk.
Under these five principals, the third precept states that Buddhists should not engage in sexual misconduct. This might include adultery, as being unfaithful to a partner can cause suffering, and promiscuity, which can be seen as a negative expression of craving after sexual stimulation. Sex should form part of a loving relationship (for example, marriage).
Jainism
In Jainism, another founded in India on the principle of non-violence like Buddhism, men are taught to practice patience, says Jain monk Devendra Bhaiji. “Since the beginning of a child’s birth, he or she is taught pratikramana, a ritual performed by Jains to atone (prayaschit) for their sins and other non-meritorious acts,” says the Jain monk, explaining that a Jain seeks forgiveness from all life forms in the world they have harmed knowingly or unknowingly by uttering the phrase—micchāmi dukkaḍaṃ (Prakrit for may all the evil that has been done be in vain).
“We have not heard of any such incident of marital rape but if such an incident happens, a legal course of action can be undertaken but we don’t ban the family from the Jain society,” reveals monk Bhaiji.