The Social And Legal Paradox Relating To Marital Rape In India: Addressing Structural Inequalities
By Shalu Nigam
03 June, 2015
Countercurrents.org
Recently when the Bill to criminalize marital rape was introduced in India, it was turned down by the Parliament. According to some of the Parliamentarians, marriage is a sacred institution and touching it will leads to breakdown of marriages. They are of the view that India should be proud of its culture because `the nation has low divorce rates’. Statements have been issued against criminalizing marital rape without acknowledging the fact that most marriages in India survive because women silently endure violence and abuse within such relationships. The culture of `silence’, `tolerance’, `adjustment’, `compromise’ among women is propagated to `save and respect the `honour’, the `pride’ and the `values’ of the Indian family overlooking the fact that incest, violence, suicides, murders are the price women pay. On the other hand there is a men’s group which is lobbying fiercely to highlight the fact the law against domestic violence has been misused by women and therefore should be diluted. They further propagated that the enactment of penal law against marital rape will also be abused by women. According to such arguments, a woman, who is not docile, subservient or compliant and complains about the continuous abuse within the conjugal relationship is an anti-family warrior breaking the sacred bonds while converting bedroom to a battlefield. Both the groups ignore the reality that most cases of emotional violence, sexual abuse, physical assault, mental trauma, all takes place within this `sanctified’ territory because women are powerless and vulnerable and have been socialized to be pliant, obedient and subservient. This essay attempts to unpack the everyday possibility as well as reality of the lives of women in the light of backlash on women’s rights and looks at the debate on criminalizing marital rape from the gender perspective. It concludes that this concept needs to be examined in the larger perspective of violence against women and should be dealt accordingly.
Debates Regarding Criminalization of Marital Rape
Criminalizing marital rape has been a long standing demand made by the women’s movement in India. Recommendations of penalizing rape within marriages were also made by the Justice Verma Committee Report formulated after Nirbhaya’s gang rape case. This Report reiterates that marital rape stems from the outdated notion of marriage that regards wives as property of husbands. It rules out the common law of coverture[1], according to which a wife has been deemed to be consented at the time of marriage to have intercourse with her husband at his whims and this consent could not be revoked anytime after the marriage. The Committee suggested that existence of relationship is not a valid defense against the sexual violation.
However, this recommendation was ignored and rejected by the then government which selectively and arbitrarily picked up a few suggestions rather than holistically adopting the same to tackle rape cases. This piecemeal fragmented adoption of the multi-sectoral approach denies comprehensive recourse to the survivors of sexual violence. In fact, since independence, successive governments have decided against touching the institution of marriage. Based on the irrational logic that criminalizing marital rape `will destroy the institution of family, will attack its sanctity’ and `will be used as a weapon by women to torture the male members’, the state has been violating the constitutional rights to dignified life of married women.
The Criminal Law Amendment Act 2013 does not recognize marital rape as a crime unless a wife below 16 years of age is sexually assaulted or rape is committed during the period of separation between the spouses. The state took the stand that the Protection of Women Against Domestic Violence 2005 already provide remedy besides the provisions under criminal law. Though recently, under the pressure from the men’s group, steps are being taken to dilute the already existent criminal law provision under the Section 498 A of the Indian Penal Code which penalize cruelty to married women. Nevertheless, this approach fails to see the fact that none of the personal laws, the criminal or the civil law empowers a wife to seek criminal remedy against husband who sexually assaults her repeatedly over a prolonged period.
In fact, recently while the issue of criminalizing marital rape was discussed in Rajya Sabha, the India’s Minister of state for Home Affairs, Haribhai Parathibhai Chaudhary, stated that the marriage is a sacrosanct institution. He argued that `the concept of marital rape, as understood internationally, is not suitable in the Indian context, due to illiteracy, poverty, social customs and values, religious beliefs and the fact that Indian society treats marriage as a sacrament’[2]. The Minister, like many others, upholds the notion that a wife by the virtue of marriage is duty bound to submit silently to sexual whims and desire of her husband and therefore she must willingly subject her body to being ravaged without complain. According to this philosophy, men are officially licensed to rape their wives with impunity. Such beliefs do not see marital rape as a widespread social problem. Rather, this view exploits social customs and religious beliefs as a shield to endorse retrogressive ideologies. It sanctions and legitimizes sexual abuse while censuring poor and illiterate for sexual violation while overlooking the fact that crimes against women are the misdeeds that occur in many upper and middle class households too.
Even earlier, a Standing Committee on Home Affairs in 2012[3], on these conventional bases dismissed the recommendation for criminalizing marital rape. The committee argued that “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”. The misogynistic view holds that women have ways of approaching the courts and it is not necessary to charge a man with rape. A report by the Law commission[4] also opined that criminalizing marital rape would amount to “excessive interference with the marital relationship.” These noxious assumptions presume that marriage implies lifelong blanket consent to sexual intercourse. This idea of not enacting law against marital rape ignores the reality that the role of the state in a democratic, capitalistic and globalized society is to protect the rights of wives as women and citizens rather than to safeguard the marital institution.
Ideological and Legal Incoherency
The hegemonic ideas of not touching the marital institution are based on those conveyed by the Manusmriti besides these amplify the principles laid down during the Victorian era. Rather, denying sex, according to traditional religious beliefs and personal law codes, goes against the paradigm of the duties of an `ideal wife’. This logic fails to recognize the fact that marital rape is an extreme form of sexual violence. It is a violation of the trust and sanctity in a relationship besides it also overlooks fundamental principle of women’s bodily integrity. This rationality fails to address the structural inequalities inherent in the system and indoctrinate the acceptability of sexual violence against women as `normal’.
Though cruelty in the marriage is recognized as a ground for divorce[5] by the Hindu Marriage Act[6] and other personal laws, however, the sexual torture within marriage is not recognized as a reason strong enough to treat it as a crime[7]. Legislators opine that seeking divorce from a sexually abusive man is a more comfortable option rather than penalizing him. Here, gender dimensions of marital violence are being overlooked and this position fails to recognize the fact that the rape within marriage implies patriarchal assertion of male power. It implies coercive demand for sex. This principle ignores the fact that letting go off a violent person and allowing him to marry another woman will in no way alter his violent behavior, his aggressive conduct or his sadistic attitude. Also, not punishing the crime will not deter the criminal behavior.
Controversial Arguments to Deny Women of their Autonomy and Bodily Integrity
Two sets of arguments are being proposed to deny wives their right to protection against sexual assaults within the marital tie. One set holds that due to the conditions of `poverty, illiteracy, religious beliefs and social customs’ the `Indian situations are not suitable’ to adopt marital rape laws as applicable elsewhere. Second line of thought, which is in direct contradiction with the first, opines that women in India are misusing and abusing the dowry and the domestic violence laws, thus trivializing the judicial process. These two positions are inherently contradictory. The first is based on the presumption that majority of men and women are illiterate and poor trapped by their orthodox religious and social beliefs and are too ignorant to understand the intricacies of sexual violence within marriage. This point is in direct negation of the second line of thought which assumes that women in India are too smart to understand the complexity and technicalities of law, and are therefore frivolously misusing the laws to `implicate their family members in order to take revenge’.
Also, both positions expect women to be docile, submissive, `tolerant’, `adjusting’ and passive and assume that wives in no situation should complain against their abusive husbands. In case, they do so, they are demonized and are not considered as `good wives’. As per these arguments, the imaginary of an `ideal wife’ is drawn as per conventional norms where women as wives are considered to be good only when they fulfill domestic duties, perform sexual obligations without complain, and sacrifice their individuality and identity for the sake of family. This social construct on which marital relationship is based is authoritative, in-egalitarian and autocratic. It is based on the concept of male domination and women’s subjugation. The philosophy denies married women their right to lead a life free from violence.
The discourse relating to denial of criminalizing marital rape therefore is fragmented, conflicting and contradictory. Several questions emerge in case one examines these opinions. Are Indian women poor and illiterate and therefore incapable to understand the complex phenomenon of marital rape or are they smart enough to use law as `a tool or a weapon to take revenge from their spouses’? Are all Indian women financially, educationally and economically independent besides being legally literate enough to manipulate the complex technicalities of law to take advantage of it? Or are women, in general, guided by the religious and conventional beliefs relating to marriage that they do not speak against any kind of abuse within marriage? Are poor men who cannot read or write always unkind and insensitive to women or do the poor women lack the ability to recognize violation of her physical rights? Can the levels of education, prevalence of poverty, existence of rigid social customs or religious beliefs are the reasons enough to justify non consensual sex as consent to allow marital rape? Why do women file false cases against their husbands? In case it is for revenge, why women are seeking vengeance against their immediate family members? Isn’t marriage as an intimate relation based on trust and respect? Are all women vindictive? What is the purpose of seeking revenge and what do they gain after filing `false’ cases, when in India we do not have law that divides marital property equally between the spouses after divorce as happens elsewhere? Is filing a case or registering a FIR in a police station an easy process? Is the justice seeking mechanism so quick, easy and cheap in India that many women are rushing to get their case registered under the law? Do we as citizens doubt our legal and judicial system that they easily favour women and therefore put all men behind the bars when police, judiciary, lawyers, all are male dominated fields? Are there enough social support mechanisms available here which aid wives to walk out easily of marital ties? Is the epithet that only poor men commit violence against their wives is true? Are rich or educated men more sensitive to the issue of violence and do not indulge in it? Can a huge bank balance hide the fact that non consensual sex involves cruelty? The act of rape itself is destructive, than how come banning the laws against such heinous act will breakdown the marriage? How can a civilized society justify repeated continuous rape of women without giving them any opportunity to raise their concerns?
The answers to the above questions are embedded in the hierarchical social structure which discriminate between men and women and which see `women’ as a homogenous entity. The questions evolves because of complex intersect between law, society and culture that refuses to acknowledge women as equal citizens with rights. The manner in which patriarchy operates to rule the religious, legal, political and social institutions including marriage needs a deeper understanding to comprehend the nature of violence within the intimate relation of marriage. Family as a patriarchal institution often reifies inequalities within marriage. Embedding such repressive marital relations within the larger oppressive social patriarchal structure has never helped to reduce cases of crime against women within families.
Are Wives Lesser Citizens?
The Constitution of India has granted the right to equality, liberty and dignity to all of its citizens, however, when it comes to actual implementation of law, this paradigm is hardly revoked. The legal vocabulary is a full of archaic and draconian concepts like `restitution of conjugal rights’ – a concept that legally sanctions rape within marriage. The court, according to this concept is empowered to order a spouse to submit to the conjugal act. This provision is read as consent of the partners within marriage. Its language has been used to humiliate and torture women within the domestic arena. Further, when it comes to implementation of this clause, the courts in India maintain a conflicting stance whenever the rights of wives are being invoked and often end up giving confusing decisions about rights of spouses within marriage. For instance, in the famous case of Harvinder Kaur v Harmender Singh[8] while commenting to the applicability of right to equality under the Article 14 and the right to life under Article 21 of the Indian constitution within a family, the court upheld that, “introduction of Constitutional law in the home is most inappropriate. It is like introducing bull in China shop. It will be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and married life, neither Article 21 nor Article 14 have any place. In a sensitive sphere which is at once most intimate and delicate, the introduction of cold principles of Constitutional Law will have effect on weakening of marriage bond”. The judgment therefore argues against the application of law behind the closed doors overlooking the fact that the Section 9 of the Hindu Marriage Act is already invading the marital privacy while adversely affecting the marital bond. Though this provision was later challenged in the case of Sareetha v T Venkata Subbaih[9] yet situation has not altered[10]. Here traditional notions conflict with the right based laws thus resulting in inconsistent opinions. Analysis of other judgments also reveals that wives are often treated as lesser citizens by the law[11]. The reason for this discrimination lies in the patriarchal approach of judiciary while interpreting the framework of rights and responsibilities within a family.
State’s Obligation is to Promote Rights of Women Citizens Rather than Protecting the Institution of Marriage
The role of the state in a democratic egalitarian society is to protect and promote the rights of its citizens regardless of their sex or social status. The International instruments, the national laws as well as the constitutional laws bind the state to promote the rights of women as citizens regardless of the fact that they are married or not. Marital rape exemptions are unconstitutional. Yet, the state is evading its obligations to promote rights of women citizens on the flimsy ground of `saving the institution of marriage’ for decades. A woman as a citizen is legally under no obligation to pay the price through risking her health or life to save her family. The non-interventionist approach followed by the state in the marital rape related issues perpetuates biases and discrimination against married women. The legislature as well as the judiciary, entrusted with the duty to protect the fundamental rights is dominated by men. Guided by the patriarchal ideology, they are blatantly violating the basic constitutional norms. The fundamental rights guaranteed by the constitution are not strictly scrutinized neither these are correctly applied. Also, the state has failed to recognize the fact that the purpose of enacting a law is not only to convict criminals but also to serve as a deterrent. It is an educational tool to determine moral and social wrong. The law establishes as to what constitute as socially acceptable behavior.
The Shaky Patriarchal Foundations of Marriage
Engels propounded that marriage is a man made institution established to secure power as well as ownership of property[12]. Russell[13] while elaborating on Victorian notions of morality and marriage observed that wife is seen as a property first of her father and than of her husband and therefore after marriage wife is treated as an inseparable possession of her husband. Under the conventional marriage practices prevalent in India, the control over women’s body, mind and well being is exchanged from father to the husband. These ideas reduces woman to a property possessed by men. Moreover, for centuries, men are controlling women’s right to property, employment and earning besides their claim to their bodies and bodily integrity as fathers or husbands. In such situation, a man is licensed and entitled officially and formally to exploit, abuse and derive pleasure from violating women’s body. Women are seen as powerless creatures without agency or autonomy and as merely an object of pleasure. Sex becomes an unquestioned and unchallenged act within the relationship. Therefore the stories of violence, abuse and sexual assault are common within the marriage. The NCRB Report for the year 2013[14] shows that 117 victims of incest rape (rape by blood relatives) were reported in 2012 where as parents/closed family members or 1.7% were involved in rape cases (539 out of 31,807) and in 7.3% cases (2,315 out of 31,807) relatives were involved. This statistics does not include numerous cases where wives are being raped by their husbands. Also, marital alliances in such societies are blindly considered as sacrament rather than a contract between two equals. Nonetheless, the `sacramental’ nature could not protect violation of women within marriages. Marriage vows are often not kept and neither these promote trust and mutual respect when it comes to the question relating to the dignity of women. Moreover, the glorification of Hindu marriage as an alliance between two families rather than two individuals could not prevent women from silently suffering the abuse or even face deaths[15].The ideal representation of holy monogamous commitment therefore has been shattered over the years with the rise in domestic violence, incest and brutal violation cases within families.
Marital Rape Occurs Due to Assymetrical Power Relations within Marriage
Marriage in a patriarchal Indian society is more about the assertion of masculinity rather than a partnership. This asymmetry in the marital relationship is sanctioned by the law, religion and society. For instance, the Indian legal system is guided by the Laws of England as prevalent during 18th century. The Blackstone’s Commentaries[16] therefore still inspire the ideologies determined by the courts in India. The Blackstone’s commentaries highlighted that marital contract is based on the superiority of the husband as a `lord’, `master’ or a `provider’ and puts wife in the subjugated position. Also, besides this legal position, culturally and socially, man is considered as superior being in patriarchal societies. The social and cultural norms imagine a man to `conquer and colonize while a woman is expected to receive, surrender and accept’[17].
The social construct of manhood entails exhibiting men-centric aggressive power affirming dominance. For an average Indian man, therefore, manliness is about acting tough, using his privilege, assert himself, determine rules in relationships, and, above all, control women. A man who fails to affirm power in the marital relation is being ridiculed and derided of lacking manly traits. Also, the conventional rule upholds man as a provider and a protector. During the marriage ceremonies, a man vows to protect a woman as his wife and therefore he is empowered by the social and customary norms to be dominant. The foundations of marriage are built around man’s entitlement on wife as a possession. The customary practices bequeath a man an unchallengeable right over a woman’s body which sanctions to use violence in cases the demand is not met. A man forcing himself on his wife is seen as claiming his power and asserting conjugal rights. Men, often use sex as a tool to punish and subjugate their wives. They refuse to maintain a woman in case she refuses or resist to demand for sex. This dominance and power makes the relationship fragile as it involves coercion by the perpetrator to control the woman.
For a woman, sex in marriage implies silent submission with no autonomy or control over her own body. The traditional notions deny woman of any agency and nurture gullible, passive, submissive, femininity that compel them to remain silent in order to preserve peace within the family. A woman is valued only for her sexuality and fertility. Frequently, women are conditioned and socialized to believe that marital rape is acceptable. Therefore, rape which is considered as a criminal outside home systematically becomes acceptable within marriage. It fails to understand the fact that a democratic and egalitarian society cannot justify different yardsticks to determine the penalties for violence within the homes and outside it. Marital rape therefore has to be seen in the context of in-egalitarian, male dominated and abusive relationship where an oppressor repeatedly uses his abusive position to oppress a woman.
Marital rape Implies Betrayal of Trust
A marriage, generally, is a bond of trust and affection. However, in the feudal patriarchal context, due to financial and otherwise dependency of women on men, the relationship entails coercive potential. In marital rape, a woman is continuously raped by person by whom she believes or supposes loves her. Marital rape is destructive because it threatens the elementary roots of a relationship where a woman may end up feeling humiliated, perplexed and deceived. She shares her intimate history, her home, her children, her secrets, her fears and her life with the perpetrator. Marital rape, therefore, involves a betrayal of this trust. It questions the very essence of human relationship. In this situation, a man can no longer be trusted as a protector and a woman cannot turn to his perpetrator to seek comfort or gain reassurance. Home, remains no longer safe for a woman.
Marital Rape is a part of a Larger Continuum of Violence Against Women
Marital rape is prevalent for ages as a social problem though silence has been maintained around it. In early 2000, the United Nations Population Fund in a survey found that two-thirds of married Indian women have been forced into sex by their husbands. The National Family Health Survey of India[18] (2005-2006) in its study of over 1.25 lakhs women in 29 states observed that 40 percent of married women in the age group of 15-49, at least once, had experienced physical, sexual or emotional violence perpetrated by spouses. In 2011, a study conducted by the International Center for Research on Women[19] revealed that one in every five Indian men surveyed admitted to forcing their wives into sex. These are numerical figures. However, the qualitative analysis reveals that marital rape and sexual violation is not merely related to episodic forced or penetrative sex, rather it is a larger issue.
Vaginal penetration is a part of such subjugated life. Seeing marital rape only as penetrative sex limits the definition of sexual violence within marriage.[20] Those working with women who face abuse within home often came across the gory stories of women being raped every night over prolonged period even during child birth and pregnancies. Wives are thrashed violently because they refuse to sex. Repeated incidences of violence include insertion of objects, harming the woman’s body, physically injuring it resulting in harmful effects like miscarriages, still births, vaginal infections and exposure to sexually transmitted diseases. Frequently, accounts of sexual abuse are accompanied by the brutal saga of continuous physical, mental and emotional violence. This is clubbed with intimidation and humiliation often used to control wives. Segregating marital rape from others forms of brutalities and abuses, therefore, is impossible. The tribulations comprises of increased risks to unwanted pregnancy, repeated pregnancies and abortions or infertility. Many survivors of marital rape reported physical discomfort, sexual dysfunction, emotional pain, psychological trauma, anxiety, insomnia, shock, depression, negative self image and suicidal thoughts even years out of the violence.
The descriptions of tortures within home are often supplemented by the evidences of broken limbs, fractured skull, battered bodies, shattered minds and even episodes of witnessing the rape of minor daughters. Evidences indicate that the husbands have sex with other women because they find their wives repulsive. There are narratives relating to husbands compelling wives to have sex with bosses, colleagues and friends. These sexual acts are committed because women as wives are powerless and vulnerable. Violent strategies and coercive tactics are used to evoke compliance and obedience. The situation becomes traumatic in the case of marriage where women are compelled to continue to live with their abuser. They often end up feeling inadequate, helpless and powerless with no support mechanisms. Brutalities continue in the form of rape by father in laws, brother in laws and other relatives where the voices of women are suppressed and are forced to endure violence. Countless women are forced to survive with scars which never heal, but telling about the same it is difficult.
Marital Rape is More Traumatic than the Rape by a Stranger
Susan Brownmiller[21] has observed that rape is related to assertion of power and it is a conscious process used by men to intimidate women to keep them in constant state of fear. In a marital relation, a woman is continuously forced to live invariably under the state of threat and fear because there is no escape from it. Though there can be no distinction between a `sacred’ rape carried out within the marital relationship and the criminal or violent rape carried out by the strangers, yet marital rape is much more brutal, emotionally painful and harmful because in such cases a woman is forced to live with the perpetrator day in and day out for a prolonged period and could not find refuge anywhere else. In fact, it is one case that while denying bail to a man accused of sodomizing his pregnant wife, the Delhi High Court observed, “A victim of marital sexual abuse cannot be discriminated against only because she is the wife of the offender and has to be treated as any other rape victim”[22].
In a stranger rape, the enemy is outside the `home’ – a person from an affluent class or caste, a militant who is a rapist, a woman is raped during war, or a woman is raped when she is in a vulnerable situation. However, in case of marital rape, the enemy lies within the home. He is not a stranger who is using the axis of caste, class or war. In cases of marital rape, the vulnerability of a woman is not limited for a shorter period like walking alone on a lonely road at night. Rather, in case of marital rape she leads a vulnerable life over a longer period. The security provided within marriage is no longer available. This insecurity makes her helpless and powerless. Marital Rape implies continuous humiliation, indignity and shame and the woman has to cope with intense emotional trauma which is embodied by the culture of shame and silence maintained around the situation of marital rape where a woman is conditioned not to talk about it. It is a form of violence which is conditionalized as normal, saying no to which is unthinkable and may invite other forms of violence.
Contrary to popular belief, marital rape is much more traumatic and has long lasting emotional impact as juxtaposed to rape by a stranger where violence may not occur as frequently and the perpetrator is not intimately known to the victim. Raped by a stranger, a woman is allowed to raise her voice and in the process may gain sympathy of society and community. However, raped within marriage, no one will empathize with her as it is her `duty to keep her family intact and happy’, and by complaining against such `trivial, non issues’ she is crossing the boundaries by tearing apart the lines drawn between `bedroom privacy’ and the public domain outside the family.
Rape is A Crime Against Women, It is Not related to the Family Honour
Historically, women are considered as custodian of honour of their families, tribes and communities. Rape is therefore considered synonymous with abduction and treated as an attack on community and the theft of a man’s property. And even today, this norm continues to dictate the common notions and practices. Women are still treated as the property of men within social and legal discourses. The fact that marital rape is not recognized because it is assumed that a man cannot harm himself. This principle is also envisioned by Blackstone as `Unities Doctrine’[23] where a man and a woman once marry their identities gets merged and they become one person in the eye of law. These norms deny looking at marital rape as a serious crime against a woman’s body or integrity and treat it as an ethical and less serious issue linked to family honour and injury to a man’s property. However, this doctrine fails to recognize the fact that rape is a violent and an aggressive crime against a person where the object of law should be to deter violence.
Consent within the Marital Relationship
Underlying the principle of consent in the marital relationship is the idea of respect for woman as a person and as a partner. It involves freedom to say `yes’ or `no’ to a sexual encounter. Coercion to sex against one’s will is humiliating and disgraceful. However, the law sees it otherwise. During 1600s Mathew Hale, Chief Justice in England, in his famous thesis entitled Historia Placitorium Coronea[24] wrote, “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 herself in kind unto the husband, whom she cannot retract.” According to this principle of implied consent, the permission given by the wife at the time of marriage is considered as irrevocable blanket consent to lifelong sexual intercourse. It is blindly assumed that a woman gives up all rights to her body and to herself, once she goes through the ceremony of marriage. It fails to recognize the fact that the consent to enter into a matrimonial relationship in no case implies lifelong consent to be violated and abused sexually.
This principle of implied consent has been overruled by the courts in many countries. The New Jersey Supreme Court in the matter of State v Smith[25] stated that, “this implied consent rationale, besides being offensive to our valued ideals of personal liberty is not sound where the marriage itself is not irrevocable. If a wife can exercise a legal right to separate from her husband and eventually terminate the marriage 'contract,' may she not also revoke a 'term' of that contract, namely, consent to intercourse? Just as a husband has no right to imprison his wife because of her marriage vow to him... he has no right to force sexual relations upon her against her will. If her refusals are a 'breach' of the marriage 'contract', his remedy is in a matrimonial court, not in violent or forceful self-help”. It has been deduced that this principle of implied consent may apply to consensual conjugal acts and not to violent sexual assaults[26]. The courts in US and UK have held that the concept of implied consent is unreasonable as wife who recites marriage vows cannot consent to being raped by her husband or to violence against her will.
In India, the sacramental nature of marriage as a lifelong bond eliminates and overlooks the notion of consent. A wife is treated as a sex slave and more importantly this form of slavery is officially and legally sanctioned and legitimized with no escape routes made available to the woman. It also endorses a man’s right over his wife despite of the fact that she may finds sex as an unwelcome, frightening, painful or violent encounter. This assertion of conjugality is based on the concept of diminished responsibility which assumes a woman as a asexual being with no agency or autonomy to consent to sexual acts.
Marriage is No License to Rape
As mentioned above, the common unreasonable assumption that guides the society is that marriage is a license to rape and when a woman enters into the bond of matrimony she willfully consented to be violated sexually for life. Non consensual sex within marriage has not been recognized in India. It is a culturally sanctioned way of subjugating a woman. Laws and practices need to understand the fact that rape is a rape whether it occurs within the bedroom or at the public place. The concept of `blanket consent in marriage’ is arbitrary and barbaric. A relationship between a man and woman is not a license to rape. Also, the fact that rape occurs within the four walls of house does not entail that it is a lesser act of violence.
Personal is Political
Marital rape is not being criminalized because it happens within the privacy of home. This argument ignores the fact that marital privacy ensured by the walls cannot be used as a reason to perpetuate injustice and inequalities within domestic sphere or exclude women from seeking justice. The courts elsewhere have held that marital privacy is not an absolute right. The court in USA has also declared that the state must balance its interest in protecting marital privacy against women’s interest in protecting bodily integrity[27]. Using the language of dualism, polarizing between private and public to entrench existing structure of power and domination the law creates a divide. The women’s movement has long back been promoting the ideology of `personal being political’ because marital rape is not a private issue and home is not a `impenetrable sanctuary’ for a man to perpetrate violence on women. This has been also rightly explained in the judgment in Sareetha’s case[28] where the court opined, “… any plausible definition of right to privacy is bound to take human body as its first and most basic reference for control over personal identity… [the] right to privacy belongs to a person as an individual and, is not lost by marital association.”
Are All Women Liars and Always File False Cases?
One of the arguments is that once marital rape is criminalized, women will abuse the process. It is based on the assumption that most of the women are deceitful and vindictive. It blindly presumes that most women lie and in order to take revenge they make false accusations. By raising this argument, the system demeans women by portraying them as vamps, liars, defective and deranged complainants and while at the same time debasing the faith in the legal machinery. Ironically, pressure groups have been created and many men’s organizations are lobbying to dilute the provisions of law. The backlash against women’s rights is making a dent in the justice system. The women who complained against the violence are portrayed as `vamps’ by those who believe that maintaining the sacredness of the institution of marriage is a responsibility of women as `wives’. In case a woman decides to speak or attempts to seek a legal remedy, while confronting the vicious norms of patriarchy she is seen as an `evil’ woman, a sinner, a family breaker, a trouble maker, a person less tolerant of cultural values and a malefactor. Women are often blamed for failed marriage as lacking the virtues of tolerance and patience and any attempt to dissolve the marital tie is considered as an act of rebellion. In Arnesh Kumar v State of Bihar[29], the Supreme Court has held that, “the fact that Section 498 A is a cognizable and non bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapon rather than shield by disgruntled wives. The simplest way to harass is to get the husband and relatives arrested under this provision”.
This fear of filing frivolous complaint is far from true. This is because the criminal justice system in India is technical, complicated and complex. It ensures that innocent individuals are not frivolously prosecuted or wrongly convicted and there are enough safeguards to handle false complaints. Further, proving a crime of rape or marital rape is not an easy task for a woman in a male dominated system. The social stigma attached to filing a rape case is enormous as prosecutions are embarrassing for the victims rather than the perpetrator of the crime. Fabricating a false case therefore is not a convenient option when majority of women are not even aware of legal provisions. Moreover, seeking justice is not a cheap, easy and quick process. Also, the prevalent biased perception among the police, the judges, lawyers and the other stakeholders hurdles women’s access to justice. Hence, this is not a good enough reason to deny women a legal framework to fight violence.
Voicing Concerns of Brutalities Within Intimate Relations Will Aid to Address Social and Structural Realities
The arguments against criminalizing marital rape upheld that it will have disastrous effect on families as women will file false cases against their husbands. This line of argument presumes that immediately after amending the law women trapped in sexually abusive marriage will walk out of the relationship and will press criminal charges against their husbands. This is certainly not true. It denies a woman her right to seek a legal redress against her attacker and subject her to harsh physical and emotional penalties as a wife and a victim of forcible sexual assault. It ignores the fact that it is the husband's violent act of rape and not the wife's subsequent attempts to seek protection through the criminal justice system that disrupt a marriage.
Experiences show that many women remain silent in abusive relationship because of reasons like shame, family honour, lack of social support, economic and social dependence and concerns for children among others including problems that exist within the legal system and difficulties they face in seeking justice. Also, it is not easy for a woman to provide evidences for such crime or to prove her case against an abusive husband beyond doubt. The justice system is dictated by patriarchal ideologies. Seeking legal redress is therefore not an easy process[30]. State has hardly created any avenues to support women who face violence within homes. Natal families, in many cases, do not support women. In such cases, marital rape and domestic violence is a price women pay to survive. The argument further ignores the fact that an abusive relationship is already at the verge of being broken, therefore a voice against brutalities in relationship will in no way further harm the marital relation rather it may prevent collapse of marital institution.
Is Marital Rape a Crime?
Rape of any individual, married or unmarried, is a violation of individual fundamental right to dignity and bodily integrity. Legally, marital rape may be construed as a crime because it fulfills all the criteria required to establish it as an offense. It involves injury, hurt, harm and humiliation of a woman with the intent or mensrea to do so. Yet, the laws condones sexual abuse in a domestic relationship only if it is life threatening or grievously hurtful. This is because existing rape law is a male construct that serve males interest and therefore fails to recognize marital rape as a criminal wrong. Laws are designed not to preserve dignity of women nor are these applied to save lives of women being abused, but to preserve the sanctity of the marital institution. Women therefore end up paying heavy price to protect the institution of marriage. Legal discourse is embedded in the larger patriarchal discourse from which it derives basic notions and stereotypical assumptions about gender roles. These biases distort the spirit of the law in the processes of application and enforcement.
The Biases in Legislating and Implementing the Law
The Law Commission in its 84th report[31] reasoned that forced sex with judicially separated wife is punishable seems because she is no longer the "wife" (de facto) and hence the husband has no right to forcibly enforce his conjugal rights. Such a narrow approach again reinforced Victorian legacy rather than upholding democratic and egalitarian concept of marriage. Further, the Law Commission when in its 172 report[32] suggested that enactment of any law relating to marital rape will leads to excessive interference within marriage, ignored this provision of restitution of conjugal rights where state is intervening in private relationship between two people to control their role in a bedroom. The state is also intervening through controlling the Lesbian, Gay and Transgender relationships and other provisions in criminal and civil laws. Therefore, criminalizing marital rape is no excessive intervention by the state.
Do We Need More of Aruna Shaunbaghs or Nirbhayas to Address Structural Inequalities within the Law?
Historically, the analysis of rape cases from Mathura’s case to Bhanwari Devi to Nirbhaya’s case, and recently the death 13 year old girl from Punjab to death of Aruna Shaunbagh after 42 years she was raped, all reflect on biases we have in our social and legal system that could not prevent rape and neither could provide justice to victims. Why the country which boasts of its many developments could not deal with basic aspect of providing a dignified life to its half of the population? The reasons may lie in the patriarchal asymmetric structures and attitudes which do not see women as equal partners within homes or outside. Feminists in India have often use axis of class, caste, difference in social background and male power to explain the phenomenon of rape by strangers, however, marital rape has a different connotation. Embedded within the marital relations and entrenched within intimate conjugal relation, it is defined and designed by in-egalitarian patriarchal social structure.
The biased mindset, paradigm of men women inequality, as well as deeply entrenched discriminatory social customs demeans women. Social norms are so inequitable that these allow or sometime compel women to marry their rapists. These biased norms are adopted to consolidate the property interest of men rather than the vindication for victim’s injury or recompense women. The frantic protests that took place after Delhi gang rape case commenced debates around the issue of rape by strangers but these could not highlight the issue of rape within marriage. The silence around marital rape maintained by the legal and the social system act to empower the abuser, the rapist, the perpetrator of violence. What has been neglected is the fact that rape is rape irrespective of the fact that it is committed by the person in intimate relation within the privacy of home.
Making Home Safe
To address the issue of violence against women in a comprehensive manner, the journey has to begin from every household and from every person. It is essential to make home a safe place for women and children. Therefore, until the discussion around the issue of respect to women and their dignity within home is initiated the situation of women is not going to improve. It is essential to view marriage as an equal partnership. The need of the hour is to embrace the concept of consent within marital relation. Acknowledging that fact that women have a right over their bodies is essential to promote the concept of consensual sex. Challenging the deeply ingrained stereotypes, widespread entrenched mentality and questioning the biased values may provide the solutions to the issue of discrimination and violence within marriage. The intersection of religious belief, politics and law needs to take anti-violence stance. Along with alteration in the formal rules, what is required is the open discussions to define sexual coercion and violence within a marriage. In addition, need is to reform to the justice system while addressing the fundamental structural inequalities that promote the environment of oppression. Legal rules and practices that favour perpetrators rather than the survivors need to be questioned. This oppressive system has to be replaced by the structure that promotes women’s equality, sexual autonomy, self determination, dignity and physical integrity. While amendments to criminal laws is a significant symbolic recognition to women’s equality and right to bodily integrity, it has to be accompanied by systemic social and political transformations including provisions for economic and social independence for women. Questions against the institution of marriage itself as a biased oppressive structure has been raised by some of the feminists who believe that women’s liberation lie in autonomy and self-determination. The emerging sexual revolution therefore has to deal with emerging questions rather than dealing with superficial issues of misuse of law or preserving sanctity within the marriage. The slogan of `making home safe’ needs to be broadly interpreted when situated in the context of rape within intimate relationship.
The Author is an activist and a researcher working on gender, law and governance issues. The views expressed in this essay are based on her experience of working with women’s survivors of domestic violence for over two decades. The author may be contacted at [email protected]
[1] Described by William Blackstone (1769) Of Husband and Wife, Commentaries on the Laws of England Book 1 Chapter 15 http://lonang.com/library/reference/blackstone-commentaries-law-england/bla-115/
[2] Ministry of Home Affairs (2015) Women Subjected to Marital Rape, Government of India, Press Information Bureau dated April 29, http://pib.nic.in/newsite/PrintRelease.aspx?relid=119938
[3] Parliament Standing Committee on Home Affairs (2013) One hundred and Sixty Seventh Report on The Criminal Law Amendment Bill 2012, Rajya Sabha Secretariat, New Delhi http://www.prsindia.org/uploads/media/Criminal%20Law/SCR%20Criminal%20Law%20Bill.pdf
[4] Law Commission of India (2000) Review of Rape Laws, 172nd Report, New Delhi
[5] Shashi Bala v Rajiv Arora FAO No. 185/2001 Delhi High Court, Judgment delivered on 21.3.12
[6] The Hindu Marriage Act 1955 Section 13 (1)
[7] The PWDVA Act 2005 defines sexual violence under the definition of domestic violence, however, a woman can seek Protection Order and not a criminal remedy under this law
[8] AIR 1984 Delhi 66
[9] AIR 1983 AP 356
[10] The Supreme Court in the matter of Saroj Rani v Sudarshan Kumar Chadha 1984 AIR 1562 upheld the Delhi High Court Ruling and overruled decision by the AP High Court while arguing that introduction of equality clause within home will destroy the institution of marriage.
[11] State v Aftab Alam, Special Fast Track Court, Dwarka Court SC No. 131/13 Unique Case ID No. 02405R0075252013 Date of Pronouncement 05.06.2014
[12] Engels Friedrich (1973) The Origin of Family, Private Property and State, Moscow: Progress Publishers
[13] Russell Bertrand (1929) Marriage and Morals Republished in 2009 by Routledge: London and New York
[14] National Crime Record Bureau (2013) Crime in India http://ncrb.gov.in/
[15] The Asian Age (2015) The Government’s Refusal to Criminalize Marital rape is regressive, May 7, http://www.asianage.com/debate/government-s-refusal-criminalise-marital-rape-regressive-171
[16] Ibid 1
[17] Grace (2012) William Douglas Are Women Human? The Gospel Coalition and Sanctified Rape Culture July 18
http://arewomenhuman.me/2012/07/18/doug-wilson-gospel-coalition-rape/
[18] Sunita Kishor and Kamla Gupta, ‘National Family Health Survey (NFHS-3) India, 2005-06: Gender Equality and Women’s Empowerment in India’, August 2009, http://www.rchiips.org/nfhs/a_subject_report_gender_for_website.pdf, pp 95-109.
[19] ICRW (2014) The Making of Sexual Violence: How Does a Boy Grow up to Commit Rape? Evidences from five IMAGES countries Washington DC http://www.icrw.org/sites/default/files/publications/The%20Making%20Of%20Sexual%20Violence%20-%20June%202014%20-%20WEB%20PREVIEW.pdf
[20] Agnes Flavia (2015) Marital rape: Why Both Sides have Got it Wrong, The Times of India dated May 17
[21] Susan Brownmiller (1993) Against Our Will: Men, Women and Rape, New York: Ballantine Books
[22] The Outlook (2014) Marital Rape Victims Be Treated Equally with others: HC Dated March 14 http://www.outlookindia.com/news/article/marital-rape-victim-be-treated-equally-with-others-hc/831232
[23] Ibid note 1
[24] Hale Matthew (1736) The History of Plea of Crown reprinted in 2004 The Lawbook Exchange Ltd. England
[25] 85 NJ 193 1981
[26] As held by the New York Court of Appeal in the matter of People v Liberta 1984
[27] People v. DeStefano 467 NYS New York County 1983
[28] Opcit n 7
[29] Supreme Court of India Criminal Appeal No. 1277 of 2014 SLP Cr No. 9127 of 2013
[30] Nigam Shalu (2005) Understanding Justice Delivery System in India from the perspective of women litigants as victims of domestic Violence New Delhi: CWDS http://www.cwds.ac.in/OCPaper/UnderstandingJustice.pdf
[31] The Law Commission of India (1980) 84th Report on Law of Rape New Delhi: The Union of India Press
[32] The Law Commission of India (2000) 172nd Report on the Review of Rape Laws, New Delhi: the Union of India Press
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