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Indian courts to husband: Domestic violence is a no-no; marital rape is A-ok!

A Delhi court yesterday acquitted a man on charges of raping his wife. "Defence counsel rightly argued that IPC does not recognise any such concept of marital rape. If complainant was a legally-wedded wife of accused, the sexual intercourse with her by accused would not constitute offence of rape even if it was by force or against her wishes," observed District Judge JR Aryan.

I checked the date on the calendar. Yes, it is indeed 2012. And yes, we still view a woman's body as the property of her spouse. Oh woe the retrograde Indian law, society, men et al. Isn't this just one more example of how our laws remain obdurately stagnant despite the changing times?

Not quite. A quick look at the proposed amendments to the definition of rape reveal a government so enlightened that it is now ready to make the act gender-neutral. We are ready to recognise the fact that men can be raped by other men, that women too may sexually assault men, other women, and children. But the Criminal Law Amendment Bill is not however willing to concede that a husband can rape his wife.  As Firstpost's Danish Raza reported in June:

Strangely enough, marital rape, an aspect of sexual violence that many women in India face, is not addressed by the legislation. The Bill though does propose to amend section 375 of IPC to increase the age of consensual sex for a married woman from 15 to 16 years.

“There is a clear contradiction here. The Child Marriage Act says that marriageable age of a girl is 18 years. But here, the government says that if a girl below 16 is having consensual sex, it is legitimate,” said Hasina Kharbih from Impulse, a human rights group. “It is strange that the government is amending the rape law and it has nothing to put an end to marital rapes which is an open secret in India.” she added.

Representational Image. AFP

It is strange indeed that our lawmakers believe that a girl loses the right to her own body the moment she turns 16 — happy birthday, dear! Not that the 2010 proposal to up the ante to the age for marriage, ie 18, is any less absurd, as Kalpana Sharma noted at the time:

If it has recognised the anomaly in the age factor in this ‘exception’ to Section 375, then why can it not understand that the ‘exception’ itself is an anomaly? Why is it a crime only if a woman under 18 is raped by her husband and not a person over that age? In other words, you accept that husbands should not rape their wives, and yet apparently, they can the day the wife turns 18. Does this make any legal sense? To compound the contradictions, the Domestic Violence Act 2005 offers a civil remedy for marital rape and Section 498 A considers “perverse sexual conduct by the husband” as a crime.

And is there anything more "perverse" than forcing intercourse on someone against their will? The very definition of sex entails consent, absent which it amounts to rape — and a marriage certificate ought to do little to change this pesky fact.

Given this bizarre mindset, it makes sense that so many of our judges think saat pheras are an apt judicial remedy for rape: Marry your victim and go scott-free, just like the guy who threatened to kill his victim if she reported the crime. The judge in that case explained that his intent was to "give the man a second chance and the girl, social acceptability".  Or to put it another way: if he must rape you, let him do so as his lawful right!

At a time when even the most retrograde saas-bahu soap opera treats marital rape as a crime, our learned lawmakers are unwilling to do so. Why?

One answer lies in the patriarchical origins of rape as a crime of theft. It dates back in the Western canon, as legal scholar Michelle J Anderson explains, when marriage was “a transfer of property from father to husband and if someone deflowered the virgin, that removed the property rights of the father. Rape was about stealing his property.”

While the rest of the free world has moved away from this antiquated definition, 21st century India seems unwilling to let go, perhaps reluctant to cede the last legal bastion of male authority: the bedroom. Therefore, under the guise of protecting conjugal rights — which ought to be grounds for divorce not rape — we have left intact the notion that a man essentially owns his wife. A wife he can no longer beat or threaten, but can still rape — with full legal impunity.

I guess that's what our government calls a gender-neutral rape law.