A Rape is a Rape, Husband or Stranger: Women Flay Govt. for Patriarchal Mindset

NEW DELHI: "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 society to treat marriage as a sacrament, etc." said Haribhai Parathibhai Chaudhary, Minister of State for Home Affairs in his reply to DMK MP Kanimozhi's question.

Kanimozhi submitted a question in the Rajya Sabha asking, if the government will bring in an amending bill to the Indian Penal Code (IPC) to remove the exception of 'Marital Rape' from the definition of rape in the light of United Nation's agencies' findings and recommendations.

Acknowledging that UN's committee on 'Elimination of Discrimination against Women' had earlier recommended that India criminalize Marital Rape, Chaudhary said that the Law Commission of India had not recommended this earlier and therefore will bring no amendments.

The UN's report mentioned by Kanimozhi was published in July 2014 and the Law Committee's report that Chaudhary debated his stance with came in 2000. The minister of state for home affairs, though took no cognizance of the Justice Verma Committee report that was released in the aftermath of 2013 Nirbhaya gang rape. Justice Verma Committee report among other recommendations, asked for criminalizing marital rape, was compiled after taking into account 80,000 responses that came from the public including women's rights groups, academics, gender experts and lawyers; and were deemed by many as a 'progressive' report.

Responding to Chaudhary's reply, Kanimozhi said,"I accept that the institution of marriage is an integral part of our social structure. Many people across many faiths hold it sacred. But it has not stopped us from bringing the anti-dowry law or domestic violence legislation ....Today, we are more receptive to women’s rights and issues. This is not against our culture. It is about protecting our women from violence and abuse", as reported in the media.

Ashish Gupta, a social scientist, in 2014, with the Research Institute for Compassionate Economics compared National Crime Records Bureau (NCRB) statistics on officially reported cases of violence against women with data from the National Family Health Survey (NFHS), which asked women respondents whether they had faced any sexual or physical violence. The results that he came up with were as follows: 157 per 1,00,000 women reported to NFHS surveyors that they had experienced rape by men other than their husbands in the past 12 months and 6,590 said their husbands had physically forced them to have sexual intercourse against their will. This meant that just 2.3 per cent of all rapes experienced by women were by men other than their husbands.

"It is absolutely ridiculous to say marriage is sacred and so marital rape cannot be a crime. So a woman who walks out of an abusive marriage is violating a sacred sacrament?" Kavita Krishnan of the All India Progressive Women Association was reported saying. Referring to Gupta's report she said, "The last National Family Health Survey (NFHS) data showed that the vast majority of sexual violence reported by women was within the marriage."

Sudha Sundararaman, the vice-president of the All India Democratic Women's Association reflecting on the issue said , "Marital rape is a reality and justifying it through religious, cultural norms just shows the regressive mentality of the government. This shows the patriarchal mindset of this government."

In October 2014, Additional Sessions Judge Dr. Kamini Lau had denied bail to a man accused by his wife of raping her and subjecting her to unnatural sex and also taking her nude photographs. She quoted British philosopher and political activist Bertrand Russell, "....Marriage is for women the commonest mode of livelihood and the total amount of undesired sex endured by women is probably greater in marriage than in prostitution.....". Dr.Lau in her order had said, “Non recognition of marital rape in India, a nation set upon the bedrock of equality, is gross double standard and hypocrisy in law which is central to the subordination and subjugation of women.”

As explained by India Law Journal, Section 375 of IPC mentions the exemption clause, "Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape" and only in a case of legal separation can a spouse be persecuted for marital rape. The journal further explains that "Legislators use results of research studies as an excuse against making marital rape an offence, which indicates that many survivors of marital rape, report flash back, sexual dysfunction, emotional pain, even years out of the violence and worse, they sometimes continue living with the abuser. For these reasons, even the report of the Law Commission has preferred to adhere to its earlier opinion of non-recognition of “rape within the bonds of marriage” as such a provision may amount to excessive interference with the marital relationship".

Sabeeha Masood, a domestic engineer who has been married for 22years now, on being explained the reason why Law Commission neglected Marital rape asks, "So, you are saying that if a majority number of women chose to report every case of sexual assault against them right when it is happening and not years later in a research report, would it make the Law Commission to take cognizance that 'Marital rape' does exist and making laws against it will not prove an 'excessive interference with the marital relationship', but will make men more aware and perhaps make them understand that 'marriage' does not sanction a man to dictate the terms on a woman's body ?"

A counter-opinion that a woman victimized by her husband can still fight and rescue herself from the sexual violence is given by Mayank Gaur on Quora, in respect to the Supreme Court's earlier stand against Marital Rape. He establishes that if a women is being victimized then she can opt for judicial separation in which case she can prosecute her husband for sexual violence or a woman can seek help under the Domestic Violence Act 2005 that too provides protection for women against sexual violence.

Kumar Jahagirdar, a Men's rights activist appreciated the government's stance, "Everything in marital life cannot be governed by laws. Laws like 498A are being regularly misused... The sanctity of marriage actually has no value now. I am glad the government has respected at least one of its aspects," as quoted by The Telegraph.

A 2014 Lancet Report revealed that the 'reported' sexual violence cases in India is among the lowest in the world. So the next question is, in case of 'marital rape' why women choose to live with their perpetrators for years, like Law commission report too mentioned ? The answer to this question is not just limited to India, the nations that have criminalized marital rape too face a similar problem- even if the law exists, it will be neglected if the people don't see the act as a crime. A survey in Mali revealed that 74% of women in Mali said that a husband is justified to beat his wife if she refuses to have sex with him. A report by Amnesty International showed that although marital rape is illegal in Hungary, in a public opinion poll of nearly 1,200 people in 2006, a total of 62% did not know that marital rape was a crime: over 41% of men and nearly 56% of women thought it was not punishable as a crime in Hungarian law.

The case in India can't be much different either. For women to believe that it is natural for a man to beat his wife if she does not submits to his whims and fancies, that a husband is a 'parmeshwer' (God) and no subject can deny the Lord what he wants, sounds as appalling as the fact that women have themselves failed to understand their status in society.

Nations that have criminalized Marital rape like the United Kingdom, United States of America, Australia, France, Germany even Nepal etc, do not hold marriage as a defense for rape. At least 101 countries in the world have identified that a rape is a rape, no matter if the perpetrator is a husband or a stranger.

"I think for those who find criminalizing marital rape as just another step by the femi-nazis and say that it will complicate the sanctity of marriage, need to understand that marriage is about a lot more things than sex. If a man violates your dignity then you have every right to oppose. But that is the point, women need to oppose and not just sit and suffer. We may not have a marital rape law now, but we have a Domestic Violence Act and we can opt for a divorce, so at least first do these. Sex is a choice, it is no obligation on either wife or a husband and both should have a say in that. Force is exploitation and it is so even if a woman misuses the law that was made to protect her." said Sabeeha.