Unholy matrimony: Rape by statute
consent continue, since consent is — or should be — the defining factor to establish rape. On August 9, 2017, the Central government told the Supreme Court that a man forcing his minor wife to have sex should continue to be exempted under IPC Section 375 (rape) if she is above 15 years of age. This appalling response was made to a petition filed by Independent Thought, a Delhi-based NGO, which appealed to the apex court to bring all minors, irrespective of marital status, under Section 375. The Centre held that this exception was to “protect the institution of marriage”, claiming that the husbands in the estimated 23 million child marriages in India would be liable to prosecution for statutory rape.
Currently, even though child marriage is a crime, husbands of children between the ages of 15 and are hard to come by in India, given the notion that the husband has a right over his wife’s body. However, some studies by health professionals provide a glimpse into this otherwise invisibilised crime. Dilaasa, an initiative of Mumbai-based Centre for Enquiry into Health and Allied Themes in collaboration with selected municipal hospitals studied 1,675 married women between 2001 and 2010. Domestic violence reported by them included forced sexual intercourse reported by 27 per cent women and 26 per cent reported being attacked with instruments and objects inserted into the vagina.
Out of 218 cases of domestic violence registered by the Mumbai-based NGO Sneha in 2015, about 30 percent reported being raped by their husbands. If an astounding 28.8 per cent or close to a third of almost in 2013 recommended the deletion of the marital rape exception in Section 375 and a private member bill in 2015 sought a similar amendment, the home ministry has asked the Law Commission to come up with comprehensive recommendations.
Currently, women raped by their husbands can seek recourse under the Protection of Women from Domestic Violence Act, 2005, which defines “sexual abuse” as “any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman”. Section 498A, popularly but erroneously termed the “anti-dowry” law, allows for the prosecution of a husband subjecting his wife to cruelty, which is defined as “any wilful conduct which is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman”. The difficulties in reporting marital rape are innumerable. From economic dependence on the husband; custody of children; need for a roof over the head to complex emotional and psychological bonds, women find it difficult to report and prove marital rape. The chances are even lower when they want the sexual violence to stop while continuing in the marriage. While defining criminal acts serves the purpose of circumscribing what is unacceptable in society, criminal law might not always be the best path to achieving gender equity or reciprocal sexual relations. It will require men to give up their sense of entitlement over women’s bodies, and for women’s sexual desire — both within and outside marriage — to be allowed expression. (Laxmi Murthy is a senior journalist based in Bengaluru. She has been active in the women’s movement for more than 30 years.)