When debates occur on laws that revolve around things as intimate as bedrooms and marital relationships, it invokes much interest, often highly polarising the debate. Ever since DMK MP Kanimozhi raised a question in Rajya Sabha last week if the BJP-led Central government considers amending the law to make marital rape a crime, discussions have been fierce.
The government had given a negative reply, saying the concept of marital rape as applied in other countries, is not suitable for India since family is considered a sacred institution.
Presently, Section 375 of the Indian Penal Code, which defines rape, exempts any act of sexual intercourse by a man with his wife from the purview of rape. This could mean a man can use violence to force his wife into having sex with him and yet, legally, not commit rape. The only exemption granted in law is when the woman is living apart from her husband due to a strained relationship. The proponents of making marital rape a legal offence say the present situation is fundamentally flawed and a reflection of patriarchal values of the society. They argue it is illogical to call it an offence when a man beats his wife, but not when he commits sexual assault, which is the gravest form of violence, against the same woman.
“This law is a result of not perceiving the woman as an independent human being. It is an expression of patriarchal views of the society. Whoever violates the will of an individual must be punished irrespective of their relationship with the victim,” says CPM leader and women’s rights activist Vasuki.
The most common reason cited by those opposed to declaring marital rape an offence is that it could lead to the collapse of the institution of marriage. The Parliamentary Standing Committee on Home Affairs in 2012 discussed and rejected the idea of marital rape thus: “In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.” It said women have other ways of approaching the courts and it is not necessary to make the man face a rape charge.
The Law Commission too in its 172nd report in 2000 sounded out a similar reason citing that such a law “may amount to excessive interference with the marital relationship”.
But perhaps for the first time a strong recommendation to include marital rape as an offence came from the Justice Verma committee, which was commissioned to review the rape laws after the much publicised 2012 Delhi gang-rape. It based it arguments on the principles of equality and said the present law is based on a flawed idea in the Britain-based common law.
Saying that the age-old concept of women being the property of men is no longer valid, it stated, “According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked.”
“Actually, this (making marital rape an offence) will only to help keeping the institution of marriage sacrosanct by making sure that women are respected and treated with dignity in a marriage,” says DMK MP Kanimozhi.
But some who still do not agree with the ‘marriage being sacred’ argument of the government are still apprehensive about treating marital rape as a crime. “The demand to make the punishment for marital rape equivalent to rape requires greater understanding, debate and discussion. I do not agree with the ‘culture’ argument that is being stated by the government about the concept of marriage in India. Similar arguments were raised when law was brought to abolish child marriages. But before we formulate marital rape as a form of crime, how do we look at the evidence? All these factors have to be thought of,” says advocate Geetha Ramaseshan. She also feels that it may contradict the concept of conjugal rights, which is recognised by courts.
Bringing the term ‘rape’ into marriage too is a concept that worries people like Chennai-based psychologist and marriage counsellor Saras Bhaskar, who prefers to use the term ‘inconsensual sex’.
“People speak of marital rape when their marriage is not satisfactory due to various reasons like financial issues or non inclusion in decision. So when a partner denies sex, the other tends to take it by force. The denial can be by both men or women. Couples may use intimacy or its denial as revenge or a segregation tool,” she says, adding that the complexity of marriage would make marital rape a term too strong and that the cases could rather be tried using the domestic violence laws. (With inputs from Archita Suryanarayanan)