“No means no.” The sooner we understand it, the better are our chances of fighting the increasing number of crimes against women. In an age where women are running enterprises and leading nations, there is still a part of our society that refuses to progress and treats them as mere objects of pleasure.
India being a largely patriarchal society, is still a place where women are required to eat only after their husbands are done eating. An Indian wife is expected to be dutiful and satisfy her husband in whichever way he so pleases, even if it means enduring sexual violence and emotional abuse. In fact, it is because we are a country still terribly hobbled by ignorance and custom that it becomes even more important to provide legal protection for woman.
A staggering 94% of rapes in India are committed by perpetrators known to the victim. What lies hidden within these statistics is a huge number of women with no legal road – those raped by their husbands. Marital rape has been a long debated issue in a culture-driven country like India. Statistics show that the number of women sexually assaulted by their husbands is 40 times the number of women raped by men they don’t know.
The Criminal Law (Amendment) Act, 2013, states: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” So what happens to those who are married and above the legal age of consent?
While marital rape does get documented in hospitals, cases are rarely registered, since it is excluded from the Indian Penal Code’s (IPC) definition of rape, says an analysis by Dilaasa, a counselling center based out of K.B. Bhabha Hospital in Bandra, Mumbai. Dilaasa, in its survey, analyzed 13 cases of sexual violence from the emergency rooms of two of Mumbai’s public hospitals, Rajawadi in Ghatkopar, and Bhabha, (their staff being trained to identify cases of sexual violence), between 2011 and 2014 and found that only in five instances did the police register a case, mostly under Section 498 (A) (domestic violence), or the contentious Section 377 (unnatural offences).
One case recalls a 31-year-old reaching the hospital covered with bruises all over her body, and though the police recorded her statement, they didn’t register a case. Also, no case was registered in the case of a 22-year-old whose husband forced himself on her in addition to dousing her with kerosene. In some cases, the police did not know what to do after a woman reported sexual assault by her husband. Dilaasa’s domestic violence data shows 60% married women report sexual violence, forced sex being its most common form.
The situation worsens when the Indian Minister for Women and Child Development, Maneka Gandhi, refuses to recognize marital rape as a crime. In a statement given by her in 2015, she stated that ‘marital rape’ cannot apply in India because of factors like illiteracy, poverty, social customs, religious beliefs, and the “sanctity” of marriage. She did revoke her statement earlier this year, after a torrent of outrage by female activists, where she said that the issue of marital rape was been taken into consideration. “This is one of the most complicated places to intervene because you are intervening in the bedroom,” she explained to the reporters. “How to do it with grace and with firmness is something we need to negotiate.”
According to a Supreme Court lawyer, it’s hard to register a case of sexual assault against a husband, and the fact that marital rape is legal makes it even harder. Also, in a report submitted by lawmakers to the parliament in 2013, they clearly opposed the view that such assaults should be criminalized. “If marital rape is brought under the law, the entire family system will be under great stress,” the report said.
So what options do the victims have? The Protection of Women from Domestic Violence Act, passed in 2005, enables women to access civil remedies for domestic violence including sexual abuse. For cases like these, lawyers are starting to use sections 354 and 377 when a wife wants to prosecute her husband for sexual abuse.
Section 354 punishes “assault or criminal force to a woman with intent to outrage her modesty.” And section 377 penalizes “carnal intercourse against the order of nature” — a law that also subsequently rebukes homosexuality. But rape within marriage is not explicitly acknowledged.
After the 2012 Delhi Gang Rape case of a 23 year old student that took the nation by storm by the nature of atrocities committed within it, the then Government set up a committee known as the Justice Verma Committee. Although, in its report to the Government, there were recommendations for legal reforms to reduce violence against women, but the issue of marital rape was altogether disregarded.
However, India is not the only country where marital rape is still a prominent issue. In Singapore, a man is not guilty of rape if the victim is his spouse and over the age of 13, except if the couple are living apart due to separation or divorce of where there was a court injunction, restraining or protection order in place. And in Malta, a violent abduction can be dismissed if the perpetrator marries his victim, with consent. Countries like Saudi Arabia, China, Afghanistan and Pakistan also do not recognize marital rape as a crime. With over a 100 countries that criminalize marital rape, it is but sad that India, being an economically advanced nation is unable to penalize it.
The body of marriage in India is so framed that it is treated as a sexual contract because it gives the man implied consent to sex in perpetuity. It reinforces the patriarchy that prevails in the culture and denies the woman any right over her own body. Refusing to criminalize marital rape is to accept that sexual coercion against a woman, so long as it is within the very boundaries of a marriage, will be endorsed by both government and society. If women are to wrest control of their lives, they should have the right to say no to their husbands without being socially penalized for it. The myth of the ‘wifely duty’ and the ‘conjugal right’ must end because marital sex, as all sex, must be with mutual consent and pleasure.
However, there are certain people who oppose the idea of criminalizing marital rape as they fear that doing so would violate the norms of a marriage and would be a way for many women to register false cases against their husbands, thus destroying the very foundation of a marriage.
Among the other objections to criminalizing marital rape is the question: how do you prove it? According to an anonymous government official, “You have only to go to the outpatient departments of any government hospital to know the extent of married women coming in for treatment for grievous injuries caused by sexual assault. Just because something is difficult to prove, it does not mean that you cannot have a law against it. How do you prove any rape charge? Marital rape charges shall be subjected to cross examination and forensic evidence, like any other rape charge.
To say that the institution of marriage will be threatened by such a law is to either underestimate the very real affections, bonds and negotiations that hold good marriages together despite deep disagreements and differences, or to accept that sexual abuse and coercion is so common in marriages that no man dares risk such a law.
When society makes crimes like theft and murder punishable, it is not because everyone is a potential thief or murderer. It is in the interest of the protection of the society against the few unscrupulous elements that pose threat to it. Aren’t these laws misused? Well, of course they are, in fact all of them, and with sickening frequency. But nobody is asking for them to be thrown out, are they?
It is in the interest of those women who suffer daily on the hands of their abusive husbands. When asked about the most serious offence against women, almost all of them point out sexual abuse. Ignoring it would only be overlooking the thousands of married woman who go through such trauma every single day of their lives. After all, ‘no means NO!’ #KhabarLive
