This is the second part of the three-part series on ‘the need for a law against marital rape’, as a part of the Justicemakers’ Writer’s Training Program, run in partnership with Agami and Ashoka’s Law For All Initiative. The first and third part can be found here and here.
Trigger warning: rape, sexual abuse
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In Indian culture, we are taught to worship the institution of marriage, with it being a prominent aspect of our life. This is why, to understand marital rape, we have to first decipher what marriage is like in the Indian context and, with it, the rape culture in it as well.
In the ancient era, marriage was seen as a transaction of land, wealth and women. That’s right! The shadowy effect of such notions can still be vividly seen in marriages today, whether it is about changing the bride’s name after marriage or the dowry “gifted” to the groom by the bride’s father.
Trailing the “history of rape“, the findings are not very empowering either. The first rape law that was introduced in Babylon 1900 BC, described the offense of forced sexual contact made with a woman living in her father’s confines as—’vandalising someone else’s property‘.
Going further, historically, dynasties and empires continued to see rape as a “property crime”. Correspondingly, when the property i.e., a woman, was transacted to the husband from the cages of her father, the subject of marital rape became non-existent, as one is free to do as he pleases with property he owns.
Mathew Hale, a British jurist, was the first person to enunciate marital impunity to rape, declaring marriage as a legal contract by which a woman gives herself and her bodily autonomy to her husband, making a husband impossible to be guilty of rape inside the matrimonial contract between the two.
The British-era statement, much like many other things, made its way to the Indian Penal Code (IPC) in 1860. Hale’s words worked as an instrument influencing the exception in Section 375, excluding “marital rape” from the definition of rape.
Today, when most countries throughout the world have criminalised the offense (rape) unrelated to whatever be the relationship between the perpetrator and the survivor, Indian lawmakers seem to have become Gandhi’s monkeys, whose feigned wisdom benefits none.
Now, let’s look at some of the common arguments against legally condemning marital rape, and see why they don’t hold weight upon scrutiny.
Argument #1: Marital Rape Will Disrupt The Indian Culture
The argument that criminalisation will disrupt the Indian culture is directly connected to the worries of more women coming out and speaking against the lack of consent in their marriages.
In 2012, after the Nirbhaya movement erupted, there were mass demonstrations throughout the country, demanding a better law and policy structure to tackle the problem of rape plaguing the Indian society.
A committee was made to look into the matter and create better laws for the safety and well-being of Indian women. The JS Verma committee, appointed in the aftermath of the nationwide protests, recommended excluding the “special exception” of marriage from the definition of rape.
In response, a parliamentary committee exclaimed that criminalising marital rape would disrupt the marriage structure and create anarchy in families. Many politicians and leaders have reiterated the same opinion, discouraging the hope of Indian husbands being stripped off of their license to rape.
To understand this argument better, I conducted a survey with 40 participants, including 20 men and 20 women. Among those 40 people, only eight agreed with the notion of a law against marital rape disrupting Indian culture, out of which six were women and two were men.
Another survey by the International Center for Research on Women, with a total of 9,205 men and 3,158 women participants, revealed that 51.1% of men believed a woman should tolerate domestic violence in order to keep her family together, while 57.3 % of women agreed to the same.
Argument #2: Such A Law Will Be Used To Falsely Accuse Men
Men’s rights activists’ continued blunders have made all of us well aware of the false accused cases phenomenon. Resultantly, in my survey, not only men, but even women were found to be stressing over the presumption that the anti-marital rape law will be used against men fraudulently.
Men rights activists speaking less in favour of men’s rights and more against the voices raised in favour of women’s rights, need to be introduced to male victims of sexual and physical abuse, for them to have the elementary ground of being a “rights activist”.
In India, most data journalists aim to focus on the documentation of rape cases rather than the false accusations, pointing towards the rarity of such cases, compared to the underreported numbers of rape cases.
However, in the US, a country where spousal rape is illegal, data on false cases varies from 2% to 6% only. The numbers are striking low. Please note how the US, as a western country, is prone to be seen as a more modern society and, therefore, having more modern women who care less about the stigma of reporting rape cases.
These numbers profoundly answer the arguments of men’s rights advocates and activists, who claim that the “really oppressed” women do not even report cases; instead, the law becomes a tool for “modern women” in accusing innocent men.
Argument #3: Marriage Equals A Certificate Of The Wife’s Perpetual Consent
Hale’s statement and the contemporary illustrations of the IPC, both very nicely introduce us to the subjugation of women, entrenched for years and ingrained in the brain cells of the Indian society.
Unquestionably, women are perceived as the property of their husbands, and consent as a perpetual and irrevocable phenomenon inside a marriage.
The judiciary’s demeanour towards marriages in the Indian context translates into that of a woman being a sex slave in a marriage, rather than a “wife”. But, this isn’t the first time that lawmakers have acted absurdly in the matters of women’s justice.
One such instance goes back to the Mathura rape case in 1980, that stirred a nationwide movement seeking justice for the 16-year-old tribal girl who was raped by police officers.
When the defense argued that survivor was a “loose” girl, and therefore, could not be raped, to not much surprise, the Supreme Court accepted this ridiculous argument and freed the accused. The court claimed that the “Mathura [survivor] was habitual to sex and therefore may have incited the cops.”
The data on the consent of the Indian public takes this preposterous take to an apex. The aforementioned study by the International Center for Research on Women, revealed that 81% of men perceived women as their property after marriage; while 51% of men believed that a wife could never say “no” to making sexual contact with her own husband.
Another study by the National Family Health Survey unraveled that 32% of married women have survived spousal violence (sexual, physical and emotional). Among these, 83% percent said their current husband was the perpetrator of sexual violence, while 13% reported their former husband as being the one.
As the demand for marital rape law increases, the lawmakers bow to the Indian family culture dwindling on the shoulders of rape victims, awarding the trauma of being a woman in this country a ‘tertiary’ place.
In India’s dystopian culture, where one Google search can show you hundreds of stories and anecdotes through the survivors’ own voices; a YouTube search can provide you with multiple documentaries centering on the stories of marital rape survivors; the lawmakers live in a utopian world where marital rape doesn’t seem to exist in the first place.