Law on marital rape: Why the Domestic Violence Act is a reasonable substitute

The Nirbaya gang rape case in Delhi (in December 2012) shook the national conscience like never before. The UPA government appointed a committee headed by Justice JS Verma which went into mission mode to produce a report in record time that culminated in the Criminal Law (Amendment) Act, 2013. The law brought about sweeping changes in the definition and punishment for rape.

But the new definition of rape in the Indian Penal Code (IPC) has had an anti-climax: it did not change the previous clause which excluded forced sex within marriage in the definition of rape. In fact, it said explicitly that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

The damage done by retaining the exclusion was, however, partially undone by a subsequent provision, section 376B, which says that if a man has sexual intercourse with a wife, living separately after a legal decree, but without her consent, he shall be punishable with imprisonment ranging from two to seven years in addition to a fine. But this has failed to mollify feminists, who say the non-inclusion of forced sex within marriage is abominable.

Even though clause 376B addresses the concerns and fears of women living separately, how does it help women who suffer daily sexual indignities even while seemingly being in a legally valid married relationship?

The western world, especially after the second wave of seventies feminism, has criminalised marital rape, and naturally in India too there is a clamour for the same laws. The Modi government might not have covered itself with glory by refusing to rock the filial boat, which it fears would be the case if marital dirty linen are aired in courts, but UPA-1 did its bit in this direction by legislating a law called Protection of Women from Domestic Violence Act, 2005, the core of which is about protecting women from physical and mental cruelties of all forms, including sexual abuses.

While a magistrate under the domestic violence law has no power to criminalise the act of a man raping his wife, much less sentencing him, he has vast powers to protect women - including wives and live-in partners - by drafting the services of protection officers of the area, among others. Not enough, may be the chorus from feminists, but then the only lasting solution to the problem of marital rape is legal separation or annulment of the marriage itself, with its attendant side-effects and consequences. This is why family courts in India as well as magistrates offer counselling under the domestic violence law. If a man proves to be so incorrigible that he does not mend his ways even after counselling, the only way forward for a harried woman is divorce.

That the domestic violence law has made a difference is clear from the fact that some organisations now believe that the law is often misused by women and their families to settle scores with a husband or live-in partner they may have fallen out with. The short point, however, is that wives are not that helpless in the case of marital rape: they can seek the help of a magistrate under the domestic violence law whereas under the IPC only separated women can complain against rape by their own husbands.

The domestic violence law affords woman twin reliefs: the benefit of staying in a shared household while at the same time seeking relief from the sexual advances of her husband or live-in partner. This may appear to be a contradiction but then, the term marital rape itself is at first blush an oxymoron, isn’t it? Even in the western world, women complaining of marital rape, and who succeed in prosecuting their own husbands, actually obtain final salvation only through divorce. If the shoe pinches, it is better to discard it.