A recent ruling stating that forced sex in a marriage doesn’t amount to rape has fuelled a nationwide debate. Since marital rape is not a criminal offence in India, there is no section under which the ‘victim’ can file a complaint. Most tellingly, there is no statistic available on marital rape except one by the UN Population Fund which says that more than two-thirds of married women in India, aged between 15 and 49, have been beaten, raped or forced to provide sex. SHAlINI SAKSENA speaks with activists and lawyers who say that there are many grey areas around the question ‘what constitutes consent’
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
— Sir Mathew Hale, lord Chief Justice of England in his History of the Pleas of the Crown (1736)
Sadly, nothing much has changed since the repressive 17th century England. 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.
“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,” Sehba Farooqui, secretary of the All India Democratic Women’s Association, New Delhi, says.
Recounting a case of a 21-year-old girl who visited her recently, Farooqui tells you how traumatised the girl was when she met her. “Her husband (35) would tear her clothes and force himself upon her. If she refused, forced sex would be followed by violent thrashing. 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. We are counseling him,” Farooqui reveals.
While this 21-year-old may have got a reprieve, for a 34-year-old homemaker in Delhi, it has been 11 years of physical abuse, mainly forced sex. “I discovered early in my marriage that my husband was an extremely suspicious man. He would call up from work on the home landline to check whether I was at home. When we would go out for parties and I would speak to a man, he would get violently angry. Slowly, he started beating me up whenever he saw me 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 me up repulsed me. I got no help from my parents who blamed me. Going to a counsellor is not an option. My husband would only beat me more. I now have a son who is eight. I live for him,” she says.
Such cases are dime a dozen. Family pressure, being ridiculed at the police station and the onus of proving that she is, indeed, a victim of marital rape keeps women away from filing a case against their abusive husband.
“That there are no statistics on marital rape should be reason enough for our society to wake up. Marital rape is not a criminal offence. There is no specific Section under which the police can register a complaint. The only recourse is to file the complaint under the Protection of Women from Domestic Violence Act, 2005,” civil rights activist Prof Sujato Bhadra says.
So, why is it marital rape not treated as rapeIJ “There are many reasons for calling it ‘not genuine rape’. A lot of people feel that a wife has legally agreed to having sex with her husband. This view is, of course, wrong. It stems from a misunderstanding of what marriage means. Many Indians think that the job of a husband is to provide for the wife and, in return, she has to agree to having sex with him on demand and take care of his house and children. They don’t view marriage as a partnership between equals. For them, marriage equals sex even though there is no connection between the two,” Bhagwad Park, an independent writer on women’s issues, says, adding that the only solution is a legislative one. “We need to do away with the term ‘marital rape’ just like we don’t have something called ‘marital murder’. Rape is rape. Murder is murder,” he says.
Bhagwad gives a number of reasons why marital rape is not just rape. First, there’s no way to prove that it happened. While it’s true that it is difficult to collect evidence, this is misleading. Start by defining the crime, then think about how it should be proved. For now, a man can openly claim in public that he violently rapes his wife all the time and the law cannot touch him.
Second, people say that when a woman gets married she agrees to having lifelong sex with her husband. A woman is not a sex slave. She will have sex with her husband if and when she feels like. A wife is not a prostitute whom a man can pay money and get to bed. If the man feels that his wife is not sexually active enough, he should talk about the problem. If he forces himself on her, he is a criminal.
Third, the Government feels that the introduction of a law against marital rape will destroy marriage. The Government has no Constitutional mandate to protect marriage. It does, however, have the duty to protect the rights of its citizens, one of them being a wife’s right to say no to sex.
Fourth, many are afraid that laws addressing marital rape will be abused by women much like the anti-dowry Section 498A. The solution is to have well-drafted law that can’t be abused.
The opposition to marital rape might just be the resistance to a woman’s sexual autonomy. Men and even women are brought up with the idea that marriage is the licence to have sex whenever the man wants. By refusing it, the woman is not doing her ‘duty’. This skewed reasoning stems from the notion that sex is not something women enjoy, that they only do it for a child and after that they don’t want it anymore. Instituting the idea of marital rape raises the spectre of a man going for long periods without sex even though he’s married.
Activists agree that since our society is male dominated where the man has the inherent right to sex whether the wife wants it or not, a solution to marital rape is difficult. Even the Hindu Marriage Act of 1955 says a wife is duty-bound to have sex with her husband and divorces have been granted to men whose wives have refused to have sex. The ground for divorces in such instances is mental torture.
“We place a lot of importance on the sanctity of marriage. Anything that shakes the foundation — in this case the criminalisation of marital rape — will not go down well with the men. The fact that our polity depends on votebank means that our leaders don’t want to take any action that will erode that. Also, marriage is seen as the base on which our society stands, if marital rape becomes an offence, it will open a Pandora’s box which nobody wants,” Prof Bhadra explains.
Interestingly, there are only two groups of married women who are covered by the rape law. Those under 15 years of age and those who are separated from their husbands. While the rape of a girl below 12 may be punished with rigorous imprisonment of 10 years or more, the rape of a girl under 15 carries a lesser sentence if the rapist is married to the victim.
Also, in 1983, Section 376-A was added to the Indian Penal Code which criminalised the rape of a wife separated from her husband on the order of the court. A husband can now be indicted and imprisoned up to two years, if first, there is a sexual intercourse with his wife, second, without her consent and third, she is living separately from him, whether under decree or custom.
However, much more needs to be done when it comes to tackling marital rape. When the law Commission in its 42nd Report talked about including sexual intercourse by a man with his minor wife as an offence, it brought hope. But the joint committee that reviewed the proposal dismissed the recommendation. The committee said that a husband could not be found guilty of raping his wife whatever be her age. When a man marries a woman, sex is also a part of the package.
Many women’s organisations have been demanding the deletion of the exception 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”.
“It is either the deletion of this exception or making an amendment that will protect women facing marital rape. For now, since the section specifies under what conditions there is an exemption, no court can rule in favour of the woman. Our Parliamentarians can bring a change so that wives suffering forced sex can get justice. But for now, the only solution for the woman is to prove that the marriage is under doubt. If it can be shown that no valid marriage existed, she can file a rape case against the husband. Another recourse is to prove that the wife was under age 15. However, if neither can be proved, it would not be possible to prove the ‘rape’ against the husband in view of the specific exception laid down in Section 375 of IPC,” Supreme Court advocate Ashok Dhamija explains.
Why is it that the victim (the wife) does not go the hospital and obtain a medical certificate about rapeIJ “Well, there is no legal bar under the law that prohibits the woman from going to the hospital first (though, usually, victims first go the police station and are then referred to the hospital for medical examination). However, even if a medical examination is done first and a certificate of rape obtained from the hospital, subsequently when the complaint will be lodged with the police with the name of the accused who turns out to be the husband of the woman, the aforesaid exception contained in Section 375 of the IPC will still come to the rescue of the husband and the offence of rape will not be made out”. However, Dhamija says that a survivor of marital rape in India can get some relief by filing a case against her husband under 498A IPC (husband subjecting his wife to cruelty). However, the section doesn’t clearly define the term cruelty and carries a maximum punishment of three years and a fine.
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.
Types of marital rape
Battering rape: Women experience both physical and sexual violence in the relationship. Some are battered during the sexual violence, or the rape may follow a physically violent episode where the husband wants to make up and coerces his wife to have sex against her will. The majority of marital rape victims fall under this category
Force-only rape: Husbands use only the amount of force necessary to coerce their wives. The assaults are typically after the woman has refused sexual intercourse
Obsessive rape: These assaults involve torture and/or perverse sexual acts and are often physically violent
Arguments against criminalising marital rape: