Marital Rape Judgment, Gender Justice And RSS Position


The Supreme Court recently gave the judgment that sex with minor wife can be considered a rape but if 18 years and beyond, marital rape cannot be considered a criminal offence. As per exception 2 of section 375 of IPC sexual intercourse by a man with his own wife, the wife not being under 18 years of age, is not rape. While the first part needs to be welcomed, the second has a conservative tinge attached to it. This means that entry into marriage automatically presupposes consent to sex. According to the judges, “Parliament has extensively debated the issue of marital rape and considered that it was not an offence of rape. Therefore, it cannot be considered as a criminal offence”.

This judgement has implications for women who continue to be subjected to sexual violence and rape within the institution of marriage. In India, among 34 thousand recorded cases of rape, 40% is within the institution of marriage of those between age 15 and 49. The judgement automatically presupposes that marriage is a contract for legal sex. The question arises ‘what about the justice for women who are subjected to marital rape and sex’. Doesn’t it ignore the use of force by husbands?’ ‘Doesn’t it restrict spaces for married women who want to seek justice, when subjected to force through marital rape’?

Women’s organizations in the country have sought that law defining rape in ‘exception provision’ of section 375 be declared unconstitutional, arguing that it discriminates against married women being sexually assaulted by their husbands. For years they have demanded that rape of a woman by a husband be recognized as a criminal act that carries penalties.

The judgement goes against the current trends in modern societies. Most of the countries have penalized marital rape. Marital rape is a crime in the United States, United Kingdom, Australia, Germany, Sweden, Belgium, Argentina, Bhutan, Brazil, Canada, France, Hungary and several other countries. Most of the Modern and Secular States have penalized marital rape. It is only the theocratic States that still do not have law against forced sex by husband. There are about 51 countries that have done away with exceptions to the rule of leaving husbands out of the purview of rape.

The judgement tends to indirectly legitimize the conservative forces that tend to regard ‘marriage as a sacred institution under which anything is justifiable in the name of family values and stability’. A review of some of the statements proves the point.

According to the Rashtriya Swayam Sevika secretary Seetha Annandanam, “There is nothing called marital rape. Marriage is a sacred bond. Coexistence should lead to bliss. If we are able to understand the concept of bliss, then everything runs smooth.” In reference to triple talaq she had said “Marriage is a bandan, it lends security to her life.” According to her “A man’s job is to make money – masculinity is his quality, whereas a women’s quality is motherhood.” According to her, the role of women’s wing of RSS is to teach the girls “the skillful art of uniting and keeping the family together.”

Maneka Gandhi on the occasion of women’s day said that the concept of marital rape can’t be applied in Indian context”. This is because of factors including “level of education and illiteracy, poverty, social customs and religious beliefs”. She felt that if marital rape is criminalized, it would strain the family ties.

According to Haribhai Parthibhai Chaudhary, Ministry of State for Home “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, llliteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”

Accoridng to Swaraj Kaushal, former Governor of Mizoram, senior advocate and husband of foreign minister Sushma Swaraj, in his tweet, “There is nothing like marital rape. Our homes should not become police stations…There will be more husbands in the jail, than in the house.”

The current rightwing government has taken the position that marital rape cannot be criminalized. Government in an affidavit, says that criminalizing marital rape may provide tool for harassing husbands and affect the institution of marriage. It has argued for status quo maintaining that criminalizing marital rape would “destabilise the institution of marriage”. The government’s view has been endorsed by a parliamentary panel report, which has said that the entire family system will be under great stress if marital rape is brought under law.

The position taken by the Government is not surprising. The current regime influenced by RSS concept of Hindutva considers ‘marriage as a sacred institution’.

· In this institution the role of women is defined by her traditional roles. While the role of men is to earn, women’s role is to perform traditional roles as a mother, wife and daughter in law. Role of womanhood is defined by ‘Sita’ ‘Savitris’ or sometimes ‘Jijabhai’ a mother who brings up a male child. Female identity is subsumed either as preservers or creators of male identity, rather than an identity by themselves.

· The institution of marriage is supposed to provide ‘security to her life’. In return for the security, she needs to give back unquestionable obedience and accept anything which happens in this relationship (even if it is consent to ‘rape’ as different from ‘sex’). Hence she needs to give precedence to ‘security’ rather than seeking out ‘justice’.

· In this institution, man -women relationship is guided by ‘sacredness’ rather than ‘equality’. The role of preserving the ‘sacredness’ and ‘family value’ falls on women. Any act of voicing out against marital rape will only destroy the family and threaten the ‘sacredness’ and ‘sanctity’ of marriage. Hence there is an expectation that women need to accept whatever happens in the name of marriage. It is to accept any ‘excesses’ to prevent the ‘sacredness’ and ‘family value’.

· The argument that in case of recognition of marital rape, this may be used to target husbands is again driven by patriarchal bias. It assumes that, ‘women when they voice against marital rape’ end up as destroyers of male identity and reputation and also threaten family system. Hence they should restrict themselves to being mere ‘preservers’ and ‘creators’ of male identity and the sole preservers of ‘family system’. Any voicing will be seen only as an act of destruction of ‘family system’.

Hence it is the primary duty of women to preserve ‘family system’ even if it means passively accepting ‘marital rape’.

A more radical judgment of the court of recognizing ‘marital rape’ would have been more Gender just. A weaker judgment only indirectly legitimizes the rightwing forces.

Jayashubha is a Post Graduate in Organic Chemistry and interested in Gender issues.

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