The Marital Rape 'Debate' – What It Says About Us as a Society

Years ago, as law students, we were studying the provisions relating to rape or "non-consensual sexual intercourse" in the Indian Penal Code. That was the time that I realised that a husband cannot rape his wife under the legal provisions as stood and still stand today. Marital rape is not a concept in Indian law and a man cannot be punished for raping his wife. This should be abhorrent in a civilized society but apparently, neither law-givers nor law-makers seem particularly appalled by this.

The legal position

A man cannot be considered guilty of raping his wife because, by the act of marriage, a woman is said to have given her consent to sexual intercourse for all time. So basically, under the law, as it still stands, a woman’s consent is taken to be constant, ongoing and irrevocable by the very fact of marriage. If a woman is sexually abused, she has to take the refuge of the Protection of Women from Domestic Violence Act 2005 (PWDVA). The law as it stands actually protects a husband who may be forcing himself on his wife against her will.

Some years back the National Family Health Survey found out that of 80,000 women polled, 93% said they had been sexually abused by their current or former husbands. Yet, we as a society do not think it is necessary to consider the woman’s willingness and consent. We don’t think that it is important for a woman to have bodily autonomy or the agency to refuse to have intercourse. The argument is that if women could seek redress against husbands forcing nonconsensual sex upon them, this would be a threat to the marriage, the institution of the family and society as a whole.

Currently, there are petitions before the Delhi High Court where women’s rights groups have asked for marital rape to be made a criminal offence. The central government had earlier opposed the petition on the ground that this would "destabilise the institution of marriage and become an easy tool for harassing husbands". Here the mere possibility that a man could be harassed is seen as more of a problem than a woman being violated and traumatised within her own home – our priorities as a society are laid bare here.

This attitude

Just a few years ago, the husband of a union minister and former governor, Swaraj Kaushal had this to say about marital rape. This view is horrifying at so many levels. First, there is the implication that family members should not have access to law enforcement agencies against other members of the family; that police in the home is a matter of shame and dishonour. Secondly, there seems to be an inadvertent admission that men forcing themselves upon their wives is so common, that ‘there will be more husbands in jail than in the house’. It is horrifying that someone like this seems to be both denying and confirming the widespread problem of marital rape; while seeming to make light of it.

In general, the concept of consent is pretty muddled in our country, where women are still routinely blamed for getting attacked – for where they were, at what time, what they were wearing and so on. We are still a country where a rape accused is acquitted because the woman being raped did not say no 'forcefully' enough. We are still a country where the Chief Justice of the Supreme Court makes this statement: “however brutal the husband is...when two people [are] living as husband and wife...can sexual intercourse between them be called rape?”

In the patriarchal setup of our society, rape is still conflated with family honour; which is seen to be more important than the safety and bodily integrity of the women of the family. If a woman is sexually abused, bizarrely this is a loss of face for the family; the woman’s trauma is secondary or irrelevant. Witness how Bollywood films have always euphemistically referred to rape as ‘izzat lootna’.

The mindset is that if a woman files a complaint about rape, this is shameful for the family. So if she were able to do this against her own husband; that would even more so. And what about the volition and wishes of the woman in all this – apparently that is irrelevant. So what if a woman has to suffer violence, trauma... it is all in the interests of preserving the family structure and the ‘good name’ of the family.

The possibility of misuse is an oft raised argument by those that believe there is no need for recognition and punishment of marital rape. The problem is that sex is still seen as a ‘duty’ in marriage and boys are never made to clearly understand the concept of consent. There is a very significant social change that has to take place before we as a society understand no means only no; that rape has no 'mitigating circumstances'. We have a long way to go before we realise by regressive and primitive we sound when we still need to ‘debate’ a concept like marital rape.

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