INDIA: Let’s talk about marital rape but wait…the criminal justice system is not equipped for such a thing!

Emarine Kharbhih

The Ministry of Home Affairs stated in the parliament that India is not ready for a marital rape law since it will “break the institution of marriage”. According to a study done by the International Centre for Women and the United Nations Population Fund, 57.5 per cent of men agree that a wife cannot refuse to have sex with her husband. The reason behind such notions against the freedom of women is the concept of the patriarchal system that is put on a pedestal at the cost of a woman’s dignity. For example, Genesis 3:16 says “I will make your pains in childbearing very severe; with painful labour you will give birth to children. Your desire will be for your husband, and he will rule over you” or the Law of Manu states that “Day and night, women must be kept dependent upon the males in their families. If they become attached to sensual pleasures, they must be kept under male control. Her father protects her in childhood. Her husband protects her in youth. Her sons protect her in old age. A woman is never fit for independence.”

Although in modern day India, women’s status is progressing, through education and having a career equal to men, but as soon as it comes down to marriage the word “equal rights” does not follow suit. She is obligated to follow the principles of silence, sacrifice and settlement. To keep the marriage alive she is pressurised by family, friends, and acquaintances. Even women have come to an agreement that it is necessary to do so, thus making her a modern day slave. They go through abusive marriages where a husband has the power to rape. There are incidents that happen between a husband and wife where he beats her while naked, then rubs chilli powder in her vagina or shoves a bottle inside her. The husband does not like to be rejected by the wife in bed and pins her down to rape her as a way of showing his supremacy. When the woman finally musters up the courage to break her silence and seek reparation, the police would dismiss her. They say it is a family affair, suggesting reconciliation with the husband, because arguments happen in every marriage. On the other hand, the police are also on the horns of a dilemma on the kind of action to be taken against a husband who commits marital rape. The Protection of Women from Domestic Violence Act, 2005 does not recognise marital rape and it is not a criminal offence. This Act only ensures protection, monetary relief and compensation to women; hence the perpetrator does not receive an appropriate penalty which also keeps him unaware about violating human rights through marital rape. Often, women seek to use Section 498A of the Indian Penal Code to charge a husband with cruelty but it needs to be subjected to dowry harassment which also does not acknowledge marital rape as a crime. As a result, they do not get the justice they deserve which makes other women submit to marital rape as a mode of normalcy because even the law does not recognise it. Section 375 of the Indian Penal Code states an exception that “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” It is ironic that if a stranger forces sexual intercourse on a woman, it is rape, while a husband forcing sexual intercourse on his wife is not rape. It is even more perplexing when the government makes contradictory arguments such as “in India, the institution of family is sacred” which encourages violence because there is no need to have mutual consent and desire between two people to indulge in sex. Family Law (Personal Law) which governs people of different religions such as Hindu Law, Muslim Law and Christian Law does not acknowledge marital rape, stating that sex is a conjugal duty of the wife towards her husband. Along with such laws that do not recognise marital rape being a crime, women often feel stigmatised to speak up. They choose to exit from a marriage in the simplest way possible, since society blaming a woman for separation is inevitable-especially if it has to do with not sexually pleasuring her husband. Lawyers suggest that women separate from the husband on the grounds of incompatibility. This charge makes it easier for a woman to explain her situation to the court or to people, rather than separating due to rape subjected upon her by her husband-especially if there is no sign of physical battering.

International and National recommendations ignored

In February 2007, the Committee on the Elimination of Discrimination against Women (CEDAW) recommended removing the exception of marital rape after consulting with women’s group in reforming laws and procedures related to rape and sexual abuse. After the horrifying December 2012 Nirbhaya rape case, the Justice Verma Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law. This aimed to deliver a speedy trial and enhanced punishment for criminals accused of committing sexual assault against women while acknowledging the recommendation made by CEDAW. The committee also endorsed “i) the exception for marital rape be removed. ii) the law ought to specify that:

a. A marital or other relationship between the perpetrator and victim is not a valid defence against the crimes of rape or sexual violation;

b. The relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity;

c. The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”

The Parliamentary Standing Committee on Home Affairs, headed by Venkaiah Naidu, did not consider the recommendations made by Justice Verma Committee on marital rape in the Criminal Law (Amendment), Bill 2012. It explained that “if a woman is aggrieved by the acts of her husband, there are other means of approaching the court. In India, the family system has evolved over the years and is moving forward. A family is able to resolve their problems and there is a provision under the law for cruelty against women. It was felt that if marital rape is brought under the law, the entire family system will be under stress and the Committee may perhaps be doing more injustice.” Such replies from the members of the committee, which interestingly includes only three female members out of thirty-one members (Rajya Sabha and Lok Sabha included) indicates their patriarchal attitude. This mind set believes in the righteousness of the family system, completely denying any consent in a woman’s marital life-violating her human rights to preserve the institution of the family.

The Justice Verma Committee has recommended that “We must, at this stage, rely upon Professor Sandra Fredman of Oxford University, who has submitted to the Committee that training and awareness programmes should be provided. This would ensure that all levels of the criminal justice system and ordinary people were made aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife”. If removal of exception on marital rape, according to the parliamentarians, would break down the institution of marriage then at least they should have considered the recommendation to provide awareness programmes. This is so because women should have the right to consent in their sexual life even with their partners and eventually criminalize marital rape either by removing the exception from Section 375 of Indian Penal Code or adding a clause of marital rape being a crime to the Domestic Violence Act, 2005. The fact is that nothing has started so far, not even a public advertisement as seen during election campaigns. Dismissing and justifying that marriage is a sacred institution, exhibits an incapability of understanding that women are subjected to violence from every strata of life. Relative, non-relative or strangers are possible perpetrators because no set of support system or even the auxiliary units such as the criminal justice system is appropriately aiding the laws made to prevent violence against women which will eventually change the societal attitude towards women and enhance their status.

The law evolves society but it should also be ready!

The recommendation by the Justice Verma Committee and CEDAW should be considered and acted on accordingly as a way forward to a more enlightened society that focuses on individuals being equal regardless of sex, class, race or caste. For instance, in the 1980’s there was an increasing rate of dowry deaths in India. In order to strengthen the Dowry Prohibition Act 1961, an introduction of Section 498 A of the Indian Penal Code was introduced stating that “Husband or relative of husband of a woman subjecting her to cruelty-whoever being the husband or the relative of the husband of a woman, subjects such a woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine”. Simultaneously, there were social awareness movements and campaigns that spread the message of doing away with the traditional dowry as it highlighted the plight of women in society who were pushed to commit suicide or were burned to death by their in-laws. Due to such developments, women from all walks of life are encouraged to report cases of dowry harassment accepting that such a tradition is a crime and that the criminal justice system will investigate and adjudicate their cases. Sadly, the law was blatantly abused because the criminal justice system was not ready or equipped to perceive the law appropriately to render justice.

Similarly, while proving marital rape that happened or did not happen within the four walls of a bedroom should be left open to the criminal justice institution to decide. But, the government lacks faith in them. This is because they have spent too much time in parliament justifying the right and wrong of the family institution, apparently forgetting the importance of restructuring the institution of justice. This is an important factor to be taken into account if we are to move towards a progressive nation where women live a qualitative life. The government should stop behaving like religious fanatics and male chauvinists because there are 48.16 per cent of females living in the country who are not safe inside or outside their own homes. It is more advisable to turn the argument towards a more logical and sensible approach of empowering women and upgrading their status in the society by reforming the criminal justice institution. In order to do so, the government needs to approach civil society organisations, individuals, lawyers, judges, the police to identify the loopholes present in the institution by analysing some questions…

Why are women not safe in the country?

Why are there cases pending related to crimes against women?

Why are the laws not reducing crimes against women?

Why do women hesitate to report a crime that happens inside or outside the home?

Marital rape laws will only be successful when the government decides to address the restoration of the criminal justice institution. It is equipped to render justice which also prevents it from being abused rather than wasting time and making statements like “India is not ready for marital rape laws”. It will never be ready for anything as long as its auxiliary supports are not technically functioning properly. An example – preference of advanced forensic science investigation is only given to high profile cases-so the less important rape cases are rusting in police stations.

Furthermore, one cannot deny that increased awareness of the people about the kinds of violence against women, such as marital rape, should be spoken about and discussed frequently. This can transpire through social mass movements involving individuals, Civil Society Organisations, Government and international Non-Governmental Organisations. They should be looked upon as an additional set of support system that will help in transforming people’s minds about the falseness of women’s conjugal duties in marriage. Such initiatives will assist the country in going forward because the foundation of the family institution is made up of people who need to value every human life, treating it with respect and dignity and that marriage is not a license to violence.