Marriage: A mast for rape?

Three years ago, when she left her native town of Tezpur in Assam, to work as a human resource personnel at an MNC in Gurgaon, she met Vivek (name changed). Love blossomed and they soon married, with Shabana converting to be a part of the union.

The violence followed soon after. The beatings became more regular and severe. And then came the final straw on a cold February morning last year. While readying herself for a bath, she chanced upon some messages on his phone; Vivek had been texting sexually explicit messages with another woman. "When she confronted him, he beat her up brutally. He went on to have unnatural sex on her, and even forced a torch into her private parts. When he was done, he left her bleeding profusely inside her bathroom, semi-conscious," says advocate Kamlesh Kumar Mishra. "She called her mother, who happened to be in town, and was then rushed to the hospital."

When she wanted to file a complaint with the local police station, Vivek reached the hospital and threatened her. And when she finally reached the station, they first routed her to the women police cell where she was repeatedly advised to drop charges. "They told her that these things are normal, and that men expect their wives to satisfy their sexual urges," said Mishra. "Finally, she went to the Patiala House court to file a charge under section 156 to simply file the PIL. Her first lawyer abandoned her midway."

Eventually, she got in touch with Human Rights Law Network, which is where she met Kamlesh. HRLN, distraught with Shabana's case, filed a PIL in the Supreme Court. However, a committee comprising Justices Dave and Bhanumati, who observed that they were not inclined to entertain an individual petition, despite several arguments put forward by HRLN. They had to withdraw the case, but are determined to file another PIL. "Shabana will never be able to punish her husband as the law is never retrospective, but we will file another PIL with the help of several other organisations and with cases from around the country," said Mishra.

Shabana is not an exemplary case, her's is an everyday reality for women around the country. Without a reliable legal recourse to fall back upon, women around the country suffer in silence day after day.

No law for married women
Last week, when DMK MP Kanimozhi asked the government if it planned to bring reforms to make marital rape a punishable offence, minister of state for home Haribhai Parathibhai Chaudhary was quick to respond. "It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament," he said.

As per the law, section 375 of the Indian Penal Code (IPC) explicitly lays down the clause, thus: "Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape." In 2013, when the Criminal Law (Amendment) Act brought about changes in legislation to deal with sexual violence, it glaringly left out marital rape. The Domestic Violence Act (2005), that provides some solace in the case of assault, is also inadequate as there can be no criminal proceedings. Following the December 16 gangrape case, when the Justice Verma Committee laid down its recommendations, it suggested that marital rape be punished. But the then UPA government refused to pass legislation; the standing committee of the Parliament did not even mention marital rape.

Around the world, 52 states have outlawed marital rape, while 127 countries do not explicitly criminalise rape within marriage, as per the 2011 UN Women report Progress of the World's Women. In this, India is at par with Afghanistan, China, Pakistan and Saudi Arabia. Countries that criminalise marital rape include the US, UK, Norway, Australia, France, Germany, Thailad, Namibia, Rwanda, Nepal, Ghana, Zimbabwe and Malaysia. The UN, which considers marital rape as a violation of human rights, defines rape as "marital rape, also called spousal rape, as non-consensual sex where the perpetrator is the victim's spouse. Explicit criminalisation of marital rape is recommended as best practice by, among others, the Council of Europe (Council of Europe 2009c)."

Dr. Rebecca Reichmann Tavares, representative of the UN Women Office for India, Bhutan, Maldives and Sri Lanka says that it is time India wakes up to legislative changes. "Marriage is a relationship of equality; one of trust, respect and affection. Any form of violence, including marital rape is unacceptable and is a violation of women's human rights. As intimate partner violence is the most pervasive form of violence against women, legal mechanisms, debates, and changing mindsets will all be critical to ending it now," says Tavares.

Studying attitudes, mapping violence
Two UN studies that show disastrous attitudes with respect to intimate partner violence owing to skewed interpersonal relationships between men and women, include a survey of 10,000 men in south and east Asia on why men commit rape, and another by the UNFPA on domestic violence.

In the first, conducted on men in Bangladesh, Cambodia, China, Indonesia, Sri Lanka and Papua New Guinea, the most common reason for men committing rape was sexual entitlement. 70-80% of the men believed that "they have the right to sex, regardless of consent."

In the second, conducted on 9,205 men and 3,158 women from Uttar Pradesh, Rajasthan, Punjab and Haryana, Odisha, Madhya Pradesh and Maharashtra, 50% of the men felt that violence against women was endemic to a happy family. 77% women also said that their partners expected them to agree when they wanted sex. 54% of the women also said that if they asked their partners to use a condom, their partners would get angry.

The National Family Health Survey of 2005-06, conducted by the ministry of health and family welfare found that 40% married women between the ages of 15 to 49 years, out of 1.25 lakh women across 29 states, experienced spousal physical, sexual or emotional violence. The fourth NFHS survey went a step ahead and found that only 2.3% of rape survivours that took part in the study revealed that the rape was done by a man other than their husband.

Dread the night
What studies don't tell you, is the depression brought about by the humiliation that women face. As evening gives way to the night, what many suffer from is severe bouts of anxiety and depression, says Dr Prabha Chandra, professor at the department of psychiatry at NIMHANS, who has been working in the fields of women's mental health ad intimate partner violence. "The violence comes as a package; it is not just physical or sexual. There's emotional violation and psychological intimidation, too. Under the guise of marriage, a man is allowed to do anything he wants," says Dr Chandra. "There is demand for sex, and sometimes it involves unnatural sex, or sex of a nature which the woman is not comfortable with. In many cases, men want sex even when woman is pregnant."

Dr Chandra says that many women she has come across find it difficult to talk about this. "We pry it out of many after hours of counselling. Most women suffer from post traumatic stress disorder and distress symptoms, which includes body pains," she says. In a comprehensive study she conducted in Karnataka, Tamil Nadu and Kerala as part of NIMHANS, by partnering with ICMR she found that 60% women respondents in rural Karnataka, a whopping 95% in rural Tamil Nadu, and 18% in rural Kerala said that they went through some sort of violence. In comparison to that, 56% of urban respondents in Karnataka, 100% in Tamil Nadu, and 16.5% in Kerala admitted to the same.

Colin Gonsalves, one of the founding members of the HRLN, says that the legal recourse is grossly inadequate in India. "Our first job is to show compassion and solidarity and to counsel them. Then we show anger and the willingness to fight for them," says Gonsalves. "The woman is turned away at all levels; in most cases the police does not register a case because he has been bribed by the accused, then they do file the chargesheet without any money. When the case finally comes to court, the prosecution lawyer does not proceed because he is demanding more money."

Writer-poet Meena Kandasamy, who has in the past written about the abuse and violence she had faced in the hands of her former husband, says that the Indian government is using rapes as a legal sanction to rape at will. "By situating marital rape as an inviolable/ unquestionable part of marriage, the Indian government is doing a huge disservice to the notion of marriage. A husband murdering his wife is a murderer, but why does the State fail to see that a husband raping his wife is a rapist," says Meena. When she escaped the violence of her husband, Meena found out that he had been married before. And in that situation, her marriage was null and void.

Kavita Krishnan, secretary at the All India Progressive Women's Association (AIPWA) says that no government is willing to talk about it because they are pandering to the prevalent patriarchy in society. "We cannot wait for public opinion to change a law that legalises a human rights violation," says Krishnan. "Forceful sex by a man is rape, irrespective of the whether he is the woman's husband or not. The question of safeguarding comes later. The bigger question is how do we introduce legislation on it."

Many women rarely report these case. Harish Sadani, founder of Men Against Violence and Abuse (MAVA), says that many women only mention it in passing when probed further. "There is a lot of stigma attached to it," says Sadani. "Look at our society, it is a norm of the friends of a newly married man to taunt him to have ex on the first night. A man is always asked to perform, to prove his masculinity."

He says that the MAVA helpline fields a lot of calls on sexual violence in marriages, and these days, many complaints deal with pornography and sex in front of the camera. "The men want to capture sex on camera, and women are uncomfortable. Without a law, they have to do what their husbands say," he says.

Shabana's fight to ensure a legal right of a married woman against marital rape is a brave one, and needs to be followed and supported. "By arguing that some how the fact that we are Indian (and therefore, poor, uneducated, religious, and also marital rapists), the Indian government is putting forth a caricature of Indian men that is very, very harmful to the national image," says Meena. "Most importantly, by not criminalising marital rape, the State is defacto redefining wives as 'sexual slaves', and that is extremely problematic, and something that Indian women will, and should, fight tooth and nail."