Criminalise marital rape

The Delhi High Court on Monday asked the Centre to spell out its stand on marital rape, amid demands from women organisations and activists to make it a criminal offence. The court asked the Centre to respond to a petition seeking to declare Section 375 of the Indian Penal Code (IPC) as unconstitutional as it discriminates against married women sexually assaulted by their own husbands.  According to Section 375 of the IPC, “sexual intercourse or sexual acts by a man with his own wife, the wife not being under 15 years of age, is not rape”. Despite the availability of data and numerous committee recommendations, the Indian government has not yet addressed the problem. In fact, some legislators in Parliament have gone to the extent of defending this statute, by suggesting that if a law is introduced to criminalise marital rape, then the institution of marriage will fall apart. Earlier last year, Rajya Sabha MP Kanimozhi had asked the Centre about its plans to bring “amending bill to the IPC to remove the exception to marital rape”. In response, the Minister of State for Home Affairs Haribhai Parathhibhai Chaudhary said that the Centre had no plans to do so since the institution of marriage is sacred in India. The general chauvinistic and sexist mindset of our parliamentarians has time and again enforced this misogynistic and retrograde attitude. Past governments had also given scant regard to the issue. However, after months of serious criticism on its position, the NDA government took an about turn. Last month, the government said that it will bring a comprehensive law to criminalise marital rape by amending the IPC.   “The issue of marital rape is very complicated and it is very difficult to explain and describe it. These are of such extreme private nature and no records of any consent are available. The matter has been dealt in detail by a Parliamentary Committee as well as the Law Commission,” Minister of State for Home Affairs Kiran Rijiju said in Rajya Sabha  during a debate on a private member bill. Under the guise of “due diligence”, the Centre had found another way to delay its response. Fortunately, the matter is under review in both Supreme Court and Delhi High Court. Until the courts rule on the matter and Parliament get its act together, one of the few legal remedies available to women facing domestic cruelty and violence is Section 498A of the Indian Penal Code. Unfortunately, Section 498A specifies only mental and physical abuse under its “definition of cruelty by husbands and in-laws”. An amendment to this law would also include sexual abuse. This law, though, has been drowned out by an outcry of “misuse”. The Protection of Women from Domestic Violence Act, 2005 provides protection from domestic violence but does not criminalise such acts, which is most unfortunate in the case of marriage. Even the Justice Verma Committee, set up to recommend comprehensive changes in response to the anti-rape movement of December 2012, had unambiguously recommended that the exception to marital rape must be removed from the rape law. In its report, the committee argued that the “relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity”. Even the Indian government’s own data points to the need for the criminalisation of marital rape. In a 2005-06 survey, the National Family Health Survey (NGHS) survey had asked 80,000 random women between the ages of 15 and 49, about their experience with sexual violence. Data from the survey detailed that 8.5 percent of the respondents (one in 12 women) had experienced some form of sexual violence in their lifetime. Almost 93 percent of these women said that they had been sexually abused by their current or former husbands. Meanwhile, only 1 percent said that they had been sexually assaulted by a stranger. However, it would be foolish to presume that a mere change in law would turn the tide against marital rape. It requires a serious assault on the patriarchal social norms that remain entrenched, despite two decades of economic liberalization. In the same NFHS survey, 54 percent of the respondents believed that wife-beating could be justified. However, until the law changes, the state establishment has effectively told married women that they have no right to legal remedy. Such a position does not stand the test of logic. Why is a husband or a wife punished for murdering their spouse, when this too is a matter that exists within the confines of their “sacred” marriage? The issue of marital rape is one that requires special laws and far deeper consideration. Excluding it from the rape law will be wrong.