Why India hesitates in criminalising marital rape

Marital rape has not been a part of India’s discourse. (Reuters)

Marital rape has not been a part of India’s discourse. (Reuters)

When I started looking into the issue of marital rape in India, I soon realised how difficult it would be to get anyone to talk. It is a touchy subject because there is still so much shame, guilt and anger attached to it. This is understandable: marital rape has not been a part of India’s discourse.

There is also a vocal counter-group that argues a proposed law meant to outlaw marital rape is unfair. Last week, for example, 50 NGOs and 180 activists assembled in Mumbai to demand gender neutral laws. One of the key issues to be discussed was marital rape.

Ritwik Bisaria, the PR manager of Save the Indian Family Foundation (Siff), a men’s rights organisation that opposes the criminalisation of some types of domestic violence, said beforehand: “The meeting will evolve a strategy of protecting vulnerable men who are facing undue harassment due to the present pro-women legal provisions.

“We plan to push for a private member’s bill in parliament to ensure that laws are not biased against men … Often, rape and dowry laws are used against men.”

Bisaria added that Siff would take the recommendations from the meeting to the Law Commission of India.

The issue of marital rape has been simmering for a while, but it reached boiling point in April, when the home affairs minister Haribhai Chaudhary said the National Democratic Alliance had no plans to criminalise marital rape despite a UN recommendation to do so.

According to Chaudhary, the government’s reasoning was that the concept of marital rape, “as understood internationally”, could not be applied in India due to factors such as illiteracy, poverty, social custom, religious belief and the widespread perception of marriage as a sacrament. The government took refuge behind the 172nd report of the Law Commission, released in 2000, which did not recommend the criminalisation of marital rape . The law does not classify as rape “sexual intercourse by a man with his own wife, the wife not being under 16 years of age”.

However, a month after Chaudhury’s statement, his coalition colleague Maneka Gandhi, the women and children’s development minister, went against her party’s stand, saying: “Marital rape is not always about a man’s need for sex; it is only about his need for power and subjugation.”

In July, the government-appointed panel on the status of women in India, the Pam Rajput committee , said marital rape must be considered an offence irrespective of the age of the wife and the relationship between the perpetrator and survivor.

While the rightwing Bharatiya Janata Party is non-committal on changing the law, so is the “liberal” Congress party. After the gang rape and murder of Jyoti Singh , a 23-year-old medical student, in Delhi three years ago, the Congress government at the time set up a panel to overhaul the laws on violence against women . However, the government refused to accept the panel’s suggestion that marital rape should be made an offence.

The judiciary has also been conservative on marital rape. In 2004, the supreme court ruled that treating marital rape as a criminal offence would not be suitable for India .

“Marriage is seen as a conjugal contract and sex is an integral part of this contract. The policy of non-interference in private affairs has been there since the colonial times,” said Monica Sakhrani of the Tata Institute of Social Sciences, in Mumbai. “The view stems from the belief and the legal conception that husband and wife are one legal entity and from the archaic notion that women are the property of their husbands.”

Dr Faizan Mustafa , vice-chancellor of the Nalsar University of Law in Hyderabad, said India must change its stance on marital rape: “Courts have been conservative … [but] India must amend its criminal law … marriage does not mean a permanent consent from [one’s] wife.”

In 2013, the National Crime Records Bureau reported more than 118 000 cases of domestic violence, up from 50 703 in 2003 before the Domestic Violence Act of 2005 was passed. But the DVA is a civil law and a woman cannot seek criminal prosecution under it.

“Men don’t want to criminalise marital rape because they don’t want to give the woman the power to say ‘no’,” said Priya Nanda , group director of social and economic development at the International Centre for Research on Women .

A 2014 study, Masculinity, Intimate Partner Violence and Son Preference in India (pdf), by the ICRW and the UN population fund, found that 75% of men expected their partners to agree to sex. Moreover, more than 50% of men didn’t expect their partners to use contraceptives without their permission .

Nanda said that, in addition to a law on marital rape, it is important to educate young people on the value of consent and respect, and appropriate sexual behaviour, as well as to modify the language used in discussions of violence against women.

Sakhrani suggested women don’t speak out because they lack alternatives to marriage. “They negotiate their life the best they can,” she said, citing women’s lack of rights over matrimonial property, the fact that many parents don’t want their daughters to return to the family home, and the absence of a social and legal support system.

So far, there has been no response from the government on the Pam Rajput panel recommendations. Women’s rights activists are prepared for a long battle.

One activist I spoke to recalled how her cousin, a working woman, finally mustered the courage to leave her husband after 25 years of marriage. “That’s when the family got to know about what she has been going through … but it took 25 years.” – © Guardian News & Media 2015

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