Marital rape is a problem. Section 377 is not the solution.

On the face of it, it looks like a fairly progressive judgement. Judge Kamini Lau has ruled that a victim of marital sexual abuse should be treated as a rape survivor. The court denied bail to a man accused of sodomizing his pregnant wife. “Legislatures are yet to take serious note of rampant marital sexual abuse which women suffer silently … but that does not mean that a battered wife who has been sexually abused and has invoked the legal system of our country is not entitled to any state assistance just as help is available to other victims of sexual abuse,” Judge Lau said, as quoted in The Times of India. So far so good. [caption id=“attachment_1420403” align=“alignleft” width=“380”]  Representational Image. PTI.[/caption] Today, over 104 countries across the world have outlawed marital rape. India is not one of them. We are still on the same page that Sir Mathew Hale, Lord Chief Justice of England was when he wrote: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” But that was back in the 1600s. Section 375 of our Penal Code still says “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” The 172nd Law Commission had suggested that “explanation (2) of section 375 of IPC should be deleted. Forced sexual intercourse by a husband with his wife should be treated equally as an offence just as any physical violence by a husband against the wife is treated as an offence.” The Verma Commission had recommended that marital rape be made a crime when they were putting forth their ideas for an overhaul of laws pertaining to sexual assault, after the infamous 2012 December gang-rape in Delhi. But our lawmakers were aghast, ironically, in the name of family values. “If marital rape is brought under the law, the entire family system will be under great stress,” they said in a report. Statistics like the ones from the International Center for Research on Women, where one in every five Indian men admitted to forcing their wives to have sex probably heightened the fears of nervous lawmakers. According to the UN Population Fund, more than two-thirds of married women in India, aged 15 to 49, have been beaten, or forced to provide sex. If Section 377 could stay on the books because too few (“a minisicule fraction”) were affected by it, marital rape had to stay off the books because too many apparently practiced it. “One cannot criminalize marital rape unless supplemented with amendments in the Hindu Marriage Act,” noted Mihira Sood to the blog India Real Time. The Hindu Marriage Act of 1955 says a wife is duty-bound to have sex with her husband, and divorces have been granted to husbands whose wives refuse to have sex on grounds of “mental cruelty”. That has led us into this peculiar situation. A wife denying sex to a husband is mental cruelty. But the physical cruelty of the drunk husband raping his pregnant wife is just another day in an Indian marriage. That’s the ludicrous blind spot in the law judge Lau has tried to address. But the means she is suggesting opens up a whole new can of worms. She suggests the police apply Section 377 of the IPC that, thanks to the Supreme Court ruling, has kept “sex against the order of nature” criminal. This means the accused in this case had the misfortune of sodomizing his wife as opposed to forcing her to have vaginal intercourse. Both could be coercive and equally against her will, but by this reasoning the exact act, rather than its consensuality, would determine whether the law comes down on him or turns a blind eye. And that is just wrong. There is also Section 498A, about a husband or his relatives subjecting the wife to cruelty. But “cruelty” is not really defined here and it carries a maximum punishment of three years. Section 377 carries 10 years to life. The intent of the judge might be admirable when she raps the police on the knuckles for its shoddy investigation lacking in “sensitivity and required departmental response.” But the problem of heterosexual marital rape in our culture cannot be dealt with using an archaic law, used mainly against homosexuals. Even worse, it provides one more artificial justification for keeping something like Section 377 on the books. One of the reasons Section 377 was read down, rather than repealed was because it also covered other crimes such as child sexual abuse. But as Akila RS points out in The Hindu,  “Section 377 has long outlived any utility that it may have had with the enactment of the Protection of Children from Sexual Offenses Act in 2012. The optimal solution, then, lies in repeal of Section 377 in its entirety.” The possibility of that seems remote in the near future. The courts have dismissed the review petition. The government does not seem likely to file a curative petition, which would probably not make much difference either. The BJP has come out in favour of Section 377, though Arun Jaitley said on NDTV that the BJP “has not closed its mind as a party” on decriminalizing homosexuality. Akila says imperfect as it might be “the best way forward lies in legislative interventions at the State level.” Our real problem is that our laws do not confront marital rape head on. But we cannot use a law that unfairly targets sexual minorities to cover up that grievous gap. Why can we not get the simple fact, that the real crime should be about consent, not sodomy?