#dnaEdit: Marital immunity

It is a matter of shame that successive central governments have turned a blind eye towards marital rape. The present BJP-led dispensation is no different. Its hesitation to criminalise marital rape, evident in Union minister of state for home affairs Haribhai Chaudhary’s regressive and unintelligent response to DMK MP Kanimozhi’s poser, reveals the continued stranglehold of patriarchy in Indian society. While we understand rape to mean forced sexual intercourse with woman, man or child, against her or his consent, Chaudhary has now sought to create sociological differences in rape as understood or experienced in India, and internationally. Kanimozhi had pointed the government’s attention to a UN declaration demanding that India criminalise marital rape. Chaudhary said the government would have to factor in the “level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, and the mindset of the society to treat marriage as a sacrament”. However, Chaudhary would do well to remember that many progressive Indian laws were enacted against the tide of conservative opinion. Consider for instance, the Hindu Marriage Act or the laws abolishing zamindari and untouchability. Even in 2013, a parliamentary committee on home affairs said criminalising marital rape has the “potential to destroy the institution of marriage” and place the “entire family system under great stress”.

Section 375 of the Indian Penal Code(IPC) specifically states 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”. But where Chaudhary got it wrong is the reason for the British Raj providing immunity to marital rape in the IPC. It was not because of any respect for Indian sentiments. According to the common law of coverture that evolved over centuries in England, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband, at his whim. However, by the 1980s and 1990s, Britain, US, and many Commonwealth countries, realised the horrific gender insensitivity of this antiquated law and criminalised marital rape. In contrast, our lawmakers continue to ignore the reality that non-consensual marital sex is widely prevalent. Married women can approach family courts for divorce under the broad category of “cruelty”. Similarly, they can seek civil redress under the Protection of Women from Domestic Violence Act, 2005 or approach the police under the IPC for torture and dowry harassment. It is contradictory that women can seek legal recourse for cruelty and torture against husbands but not for rape.

An analysis of the third National Family Health Survey(2005-06) by the RICE Institute revealed that 6,570 of one lakh women told surveyors they had experienced marital rape against 157 women who experienced rape by other men. This reveals the scale of the problem. The International Institute of Population Sciences, Mumbai, claimed that 26 per cent of married women in Pune, 23 per cent in Bhubaneswar, and 16 per cent in Jaipur, reported having sex with husbands against their consent. In fact, the government has cleverly relied on a Law Commission report, from 15 years ago, to defend its stand. That report restricted the discussion on marital rape to one brief paragraph saying that criminalising marital rape amounted to “excessive interference” in a marital relationship. However the subterfuge in this is that the government has ignored the more recent Verma Committee report from 2013 that devoted over six pages to discussing marital rape. Supporting criminalising marital rape, the Verma committee even said that being in a marital relationship should not be a mitigating factor in deciding consent. However, Chaudhary in his reply was conveniently silent on consent and women’s agency. Perhaps, Kanimozhi should consider introducing a private member’s bill as her DMK counterpart Tiruchi Siva successfully did last week, demanding recognition of transgender rights. Putting such matters to vote in Parliament will provide a mirror to Indian society and indicate where our lawmakers stand on such important gender issues.