The comments of
minister of state for home Haribhai Parthibhai Chaudhary that since marriage is
perceived as a sacred union, marital rape cannot be brought within the purview
of rape law smack of sexism. They seem to convey that men in India have a license
to rape their wives with impunity. The fact that Hindu marriages ceased to be
sacramental more than half a century ago, and Muslim marriages have always been
contractual is overlooked by these comments.
The position of those who have opposed these views
also seem to be narrow, short-sighted and not grounded in reality. They seem to
suggest that women are trapped in sexually abusive marriages only because of
the clause which exempts husbands from the purview of section 376 of the Indian
Penal Code (IPC). If this offensive clause is deleted, women will be able to
walk out at the very first instance of sexual abuse and press criminal charges
against their husbands. A fallacy indeed! When I hear the heartrending stories
of women raped every night, even during pregnancy and child birth, the question
foremost in my mind is: what else did this woman endure along with the violent
sex? And also, if it was not rape but brutal physical violence which fractured
her skull, broke her limbs, damaged her kidneys, scalded her face or paralysed
her, would her trauma be any less? These concerns get relegated to the
sidelines while discussing marital rape.
But for the victim they form a continuum of a
life of degradation and despair, where one act of violence cannot be segregated
from the other. How does placing violent penetrative sex on a higher pedestal
redeem her from this continuum of brutality? The demand for deletion of this
clause seems to subscribe to the patriarchal presumption that vaginal violation
forms a separate category, even within marriage, than other types of brutality.
Despite all the reforms, rape outside marriage
continues to revolve around the notion of purity and stigma, rendering the
victim unfit for marriage. Hence, the notion that the abuser must marry the
victim prevails, not just in our society, but also in our courts. On the other
hand, violent sex within marriage becomes part of the abuse which an
emotionally and economically dependent wife is subjected to by the very man
with whom she entered into a sexual contract. It has very different
implications. The very nature of the relationship demands that it be addressed
as a separate category.
"Sexual violence" within marriage is
also not confined to penetrative sex or insertion of objects into body orifices.
From the experiences that women narrate, it is inclusive of a range of other
acts of a sexual nature, including refusal to have sex because her husband
finds her repulsive, threatening that if she denies him sex he will bring other
women and indulge in sexual acts in her presence or rape their minor daughter,
forcing the woman to have sex with his boss, colleague or friend, or forcing
her to undergo repeated abortions in pursuit of a male child, etc. These sexual
acts are committed only within a marriage because of the extreme vulnerability
which women have vis-a-vis their husbands. Women do not walk out of abusive
marriages because of the very nature of dependency. So even if the offending
clause is deleted, it will not change the lives of women unless they have a
strong support base, and society stops viewing marriage as the be all and end
all of a woman's life. Lacking state support and economic means, marriage is
the only option for most women to ward off destitution and secure a roof over
their head. Rape every night and domestic violence becomes a small price to
pay, when basic survival is at stake.
It is not that the law does not provide any
options for abused women. Apart from divorce, there are other remedies
available such as protection orders, right to shelter and maintenance, and a
criminal complaint under section 498A of IPC. This section inserted thirty
years ago, can be invoked in cases of physical brutality, including sexual
violence. But the perception that it is an anti-dowry law which is grossly
misused prevails not just among aggrieved husbands, but also among lawyers,
police, judges and the media.
Instead of saying that marriage is sacred, it
would have been prudent for the minister to clarify that civil and criminal
provisions are in place which survivors of marital rape can avail of. But
ironically, the government, under pressure from men's rights groups, is
proposing its dilution, rendering brutally violated married women without an
effective criminal remedy against their abusers.
The author is a women's rights
lawyer.