Consent. One word that screams out loud of all the news articles and TV reports whenever there is a sexual crime involved. And it’s interesting how they always find distinct dimensions to it whenever it is discussed. While the fashion choice of the victims is suspected to indicate a silent ‘yes’ in certain cases ,the other times somehow the innocent liquor present in the victims muffles their ‘no’. But, things get even more morbidly interesting when you are married to your perpetrator. The word ‘yes’ is somehow engraved at the back of your marriage certificate and sex becomes an expectation instead of a choice.
So, what about marital rape? Rape, did I call it? I am sorry. My bad. I must have mistaken it with good-old domestic violence. Yes, according to the Section 375 of the Indian Penal Code (IPC), the sexual subjugation suffered at the hands of a spouse does not qualify as rape unless the wife is below the age of 15. The victims of marital rape need to take the route of Protection against Domestic Violence Act of 2005 which is a civil law and not a criminal one and warrants a punishment far more lenient than that of sexual assault. Why are people who rape under the hood of sacred institution of marriage not held to the same standards of justice as other sexual criminals or if I dare say, even harsher? This is especially infuriating because if seen objectively, marital rape commonly will not be a one-time occurrence, rather a chronic form of violence that a woman (in most cases), will have to endure.
After the Delhi gang-rape in December 2012 which shook the nation, a committee under Justice JS Verma was formed to revisit criminal laws for the victims of sexual crimes. The committee had strongly recommended that marital rape should also qualify as rape under the IPC. “The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape”, Verma Committee had suggested.
However, according to the Woman and Child Development Minister Maneka Gandhi who happened to completely change her views on the subject by the way- “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors e.g. level of education/ illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat marriage as a sacrament, etc.”
Huh, marriage as a sacrament. Let’s open those gates now, shall we?
As Indians we take our marriages seriously. Religion, caste, economic status and even complexion are extremely important factors in a marriage as opposed to love or even compatibility. Arranged Marriages, while ensure the promise of companionship and security to the individuals in the society which is extremely hostile to the culture of dating, they can really push boundaries when it comes to compatibility of any nature once married, especially the sexual kind. We are an extremely conservative society for the most parts, however much we put on the pretence of progressiveness. Sex is a big taboo subject that we refuse to have a healthy conversation with our children and then we pressure them to enter a relationship to figure it out on their own with an almost stranger. Things go horribly wrong here, at times.
According to a Huffington Post Report by Dominique Mosbergen:
And when we look at the bigger picture and see how other nations in the world deal, it isn’t pretty. We are bracketed with Middle-Eastern and African countries that have no record of championing for women’s rights.
Divorce rates are low in India as compared to a lot of other societies, a fact that is quite thrown around as an apparently solid defence for the good old Indian values. However, isn’t the choice of being allowed to walk out of an unhappy atmosphere a good thing? Is just divorce rate a factor of a successful marriage? However, because divorce is again such a horrible thing to happen to a person that they would rather spend the entirety of lives in a room which reeks of resentment or even abuse than choose to walk out of it. Yes, divorce must be heartbreakingly difficult, especially if children are involved. However, isn’t an unhappy home even harder on the kids? I digress. The Indian law facilitates divorce but the society isn’t conducive to it. This fact makes it much harder for people to report abuse of any kind especially the sexual kind which often isn’t even considered one.
Adding to the above facts, gender-roles are defined in our society where male is generally the breadwinner while the female is responsible for child-rearing activities. The fear of being left without any financial means where the law does not consider their plight even a crime can make it extremely hard for women to report marital rape at all. This becomes especially worse in a poverty-ridden, illiterate strata of society where women are not even aware of their rights. Patriarchy has so deeply nailed the idea of male entitlement that the victim herself does not consider it a normal occurrence which has been happening to generations of women before them.
Looking for more irony? Here, you go!
Now, I am not commenting on the case as it must have nuances that must be valid for granting divorce.
However, to put that into perspective, a man can drag his wife to court if she denies sex to him and it is valid but if a woman is forced to have sex with the husband, it becomes domestic violence and not rape. Smelling entitlement, are we?
I should not be too idealistic in a nation where the village Panchayats often rule that the rape victim should marry her very own perpetrator because that somehow makes sense, bringing up having forced sex with your own wife will be absolutely beyond comprehension.
Potential for abuse of the law
- Much like the article 498A (The Protection of Women against Dowry Harassment), criminalizing marital rape can arm vindictive spouses to go the harsher way when dealing with an ugly divorce. Such laws are invariably skewed in the favor of women as the majority of victims reported are women sometimes giving them an unfair advantage. The complex rules of alimony and child support can lead to blackmailing and victimizing people who are innocent but trapped in an unhappy marriage.
- Marital Rape is hard to prove in the court of law. The law runs on evidences and witnesses. The violence takes place behind closed doors and has no visible signs unless extreme can be a very morally grey area to pass a judgement on. It is difficult to provide a concrete evidence of rape when there is an occurrence of consensual sex too on other occasions.
Legislation and policy making is a separate issue, anyway. The fact is that in such cases even the victim does not know that he/she has been wronged and often take years to even come out with the truth and voice it and in some cases, just live with it.
Marriage does not presume consent. It is not an irrevocable right granted to you that allows you to violate your partner.
No means just that, NO!
Author: Priyanshi Goyal
Graphics: Himali Tripathi