In our country the idea of marriage is based on the principle that the woman’s body and mind belong to her husband. The Justice Verma Committee, set up in the wake of the brutal Delhi gangrape incident, has brought in a fundamental shift in perspective. The panel has asserted that a woman has the right over her body and sexuality. Violation of a woman’s bodily integrity, through coercion or without her consent, is an assault against her, whether it happens on the street or within a marriage. However, this fundamental principle is not understood or accepted in our society. That is why many people question the idea and even refuse to believe that there can be rape within marriage. When we ask for legislation on marital rape, there are many who exclaim, “Why do you want to bring the law into the bedroom?” The point, however, is that if violation happens in the bed, then the law has to be brought to the bed.
The central debate here is who controls the wife and her sexuality. The irony of our existing laws is such that a wife cannot charge her husband with adultery while the husband can. This notion prevalent within our social system derives from the principle of “kanyadan” (the gifting away of a girl).
In other words, women are gifted or donated to their husbands. If you are donated, you lose your identity and you become somebody else’s property. If there is a charge of adultery brought against a woman, it is considered as the most serious invasion of a man’s property. Basically, the woman is an object, the property of a man.
Nevertheless, our civil rights cannot be taken away. A woman enjoys every right as a citizen even when she is married. Marriage cannot denude her of her rights. As of 2006, a total of 104 countries have legislated marital rape, subjecting this offence to prosecution. In some other countries marital rape can be prosecuted if it happens during the period of judicial separation. In India, neither situation obtains. It is time that we had an open debate on women’s bodily integrity and autonomy. Any violation of a woman’s bodily integrity is an abuse of her body and is obviously against her consent. It leads to trauma and the possible break-up of a relationship. This kind of abuse lies at the core of domestic violence. Repeated instances make women suffer psychologically. But people do not discuss this issue, calling it a “very private matter”.
We cannot, a priori, say that a very high percentage of marriages in India are abusive. European Union data suggests that 25 per cent of the rapes there occur within marriage. In those countries usually people choose their own marriage partners.
This is largely not the case in India. So, a straightforward extrapolation may not be possible from EU statistics. Nevertheless, we can hardly afford to be complacent and assert that the incidence of marital rape is insignificant here.
I hope there will be an open debate on this, and that our Parliament will show a strong sense of responsibility towards women’s empowerment and the question of their bodily integrity.
The projection by the media is that women’s groups have unanimously demanded that marital rape be included within the definition of rape under Section 375 IPC. But this is not so. There is a lot of ambiguity within women’s groups and individual activists on this matter. I, for one, do not subscribe to the view that marital rape should be included under Section 375 IPC on account of the specific nature of a marriage contract and matrimonial relationship.
It is not my argument that husbands do not force sex on their wives against their will. They do, and this is fairly common, but sexual violence or forced sex occurs within a continuum of a range of violence that takes place within the matrimonial relationship.
Further, within marriage, sexual violence is not confined to only penetrative sex or insertion of objects into body orifices as the latest Criminal Law Amendment Ordinance projects. It is inclusive of a range of other acts — excessive sexual demands, particularly on such occasions as during menstrual periods or immediately after child birth; having extra-marital relationships and refusal to have sex with the wife; threatening the wife that if she does not have sex with him, he will bring other women and have sex with them in her presence; forcing the woman to have sex with his friends and then viewing it or filming it; or forcing her to have group sex etc; threatening the wife that if she does not have sex with him he will have sex with the daughter and even making sexual advances towards the children.
In addition, these may be part of other types of violence within marriage, such as denying money for household expenses, forcing the wife to undergo sex selective abortion in pursuit of a male child, threatening to bring another wife because she is accused of being childless, not maintaining her or throwing her out of the matrimonial home and causing desertion, or humiliating her for bringing insufficient dowry to the extent of driving her to suicide.
So, selectively placing penetrative sexual assault on a higher pedestal may actually prove counter-productive, and serve to reinforce patriarchal values of sanctity given to penetrative sexual violation.
But of even greater concern is the remedy we are seeking for this offence, which is a minimum of seven years in jail. To judge the issue, we should place this alongside the current remedies available to women against their husbands. For instance, every time a woman files a case of cruelty under Section 498A, the police are advised to send the couple for counselling before registering the complaint. Every legal institution is engaged in “counselling the couple to preserve the marriage”, including high court judges at the appeal stage in open court.
The bogey of “false complaints” looms large with even Supreme Court judges making careless and unsubstantiated comments such as that Section 498A is a “terrorist law” through which women hold their husbands to ransom.
If this is the fate of a provision which sanctions only three years of punishment, what will be the fate of a provision of marital rape which, if proved, will have a mandatory sentence of seven years?