Maneka Gandhi on 10 March said that the concept of marital rape cannot be applied in India. It cannot be “suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc,” she said in a written response to Rajya Sabha on a question if the government plans to criminalise marital rape. However, early last year, in an interview with Indo Asian News Service (published in Business Standard), Maneka Gandhi had said, “very often a marital rape is not always about a man's need for sex; it is only about his need for power and subjugation. In such case, it should be treated with seriousness.”
Education/illiteracy, poverty, myriad social customs and values, religious beliefs and mindset of society to treat marriage as a sacrament is exactly why a law on marital rape must crystallise. While there is no official National Crime Records Bureau data, a few studies shed light on the intimate partner violence experienced by women in India. According to a United Nations Population Fund report (2013), 75 percent of married Indian women have suffered marital rape. 60 percent of men had admitted to acting violently against their wife/partner at some point in their lives. According to this report, 25 percent of the calls received on women helplines to report domestic violence are linked to sexual violence. According to a National Family Health Survey (NFHS) report (2005-2006), 35 percent of women in India have experienced physical or sexual violence, including 40 percent of married women. Under spousal violence that comes under the ambit of domestic violence, 10 percent women reported that their husband have physically forced them to have sex.
In a ‘sacred’ marriage, rape is a right
The idea that marriage is sacrosanct and should not be meddled with stems from a place of deep-rooted patriarchy, where the woman in the relationship is considered property — a thing. So sex in marriage is expected, it is a man’s right. Take the ‘Restitution of Conjugal Rights’ section of the Hindu Marriage Act, through which a spouse can file a petition in matrimonial court for restitution of conjugal rights. Here’s a simple explanation, the court can force the spouse to live with a husband and to enforce this decree, can go to the extent of ‘attaching a property’ and if the spouse still does not comply, the court can hold the spouse in contempt, effectively giving the spouse two choices: go to your husband’s place or go to jail.
Madhavi Datta in her paper, Criminalising Marital Rape in India, highlights the fact that women are repeatedly told that marriage is a ‘compromise’ and that they need to ‘adjust’ — “The culture of ‘silence’, ‘tolerance’, ‘adjustment’, ‘compromise’ among women is propagated to ‘save’ and respect the honour and ‘pride’ of the Indian family values.” It is problematic that this ‘sacrosanct’, ‘pure’ and ‘sacred’ place within the marriage leaves women vulnerable, especially when they have been socialised to be obedient and pliant. The UNPF-ICRW report also states that women who have “experienced and observed discrimination” are more likely to justify it and “therefore not resist circumstances that trigger intimate partner violence.”
Lawmakers and judges have repeatedly reified notions that women are ‘its’ and ‘things’, in T. Sareetha vs Venkatasubbiah (1983), the judgement does not explain violence against Sareetha as rape but as “humiliating sexual molestation” and describes Sareetha as an “it”. Geetanjali Gangoli, in Indian Feminisms: Law, Patriarchies and Violence in India describes how courts tend to reject the redefinition of marriage which does not provide “unlimited sexual access” to husbands.
These frameworks of ‘honour’ and ‘shame’ help in controlling, directing and regulating women’s sexuality and freedom, as Radhika Coomaraswamy explains in Violence against women and ‘crimes of honour’ — “the rights of women (and girls) to control their own lives, to liberty and freedom of expression, association, movement and bodily integrity mean very little.”
Without a provision for marital rape, marriage then gives a license to rape. Within the marriage, a woman has the right to protect her liberty and life, but what about her body?
Marital rape law: A lacuna in Indian legislation
The Indian women’s movement has been actively seeking to bring sexual violence in marriages under the scope of law for many decades. Long discussions have ensued in the Parliament at various points in time, however, there is a palpable reluctance to bring about a law that effectively criminalises rape in marriages — the only legal recourse women have is under domestic violence.
The United Nations has asked India to criminalise marital rape. In the Lok Sabha debates of 1983, marital rape law was widely discussed but resisted by most Parliamentarians. Cut to 2012, the Justice Verma Committee had also made recommendations on marital rape in the Criminal Law (Amendment) bill, however, Parliamentary Standing Committee on Home Affairs, led by Venkaiah Naidu had said that an aggrieved woman has “other means of approaching the court” and that “if marital rape is brought under the law, the family system will be under stress.” Congress had refused to legislate on the basis that it had “the potential of destroying the institution of marriage.” As Shalu Nigam explains that arguments about women not being docile, subservient or complaint or who complain about “continuous abuse within the conjugal relationship is an anti-family warrior breaking the sacred bonds while converting bedroom to a battlefield.”
Complementing these (unnecessarily) high estimations of family values, are also arguments by groups asserting that marital rape law will only make it easier for women to take advantage of their husbands — or that it can be used to threaten men. These are exceptions and laws are made keeping in mind the millions who will find relief, not the small percentage that may or may not misuse it.
So, when Maneka Gandhi said that a law cannot be passed keeping in “mindset of the society to treat the marriage as a sacrament,” I have to ask what rape in a marriage does, if not break its very core? I concur with Kavita Krishnan when she says that if the “concept” of marital rape is alien to India, then “women’s autonomy and bodily integrity are foreign to India” as well.
Rape within marriage in India is invisibilised by the structures in place that legitimise it. If we are upholding marriage as a cultural ethos and justifying rape within marriage as permissible, then perhaps, Maneka Gandhi, should see the problem in that. The purpose of social reform laws is to ameliorate the society, after all, the law must protect the most vulnerable members of the society. How can the government wash its hands off legislating on a pertinent criminal issue by saying that it is a matter of culture? The government needs to get over its hesitation and speak up, the judiciary and legislation must follow suit.