After a bit of flip-flop, the ruling BJP government has agreed to strengthen the laws criminalising marital rape. In this post, we will examine the legal and social aspects behind this controversy in brief.
Recently, there has been a lot of controversy regarding marital rape in India. The feminist and liberal groups have been demanding that it should be criminalised. The conservatives have been arguing it should not be criminalised.
Some people may get the impression that in India, husbands are allowed to rape their wives. But, it is untrue. The Section 498A of the Indian Penal Code can be used to prosecute marital rape. The Section 498A is typically used to try dowry harassment cases. But it is actually there protect women from “cruelty” from their husbands or his relatives. Here, the broadly-defined “cruelty” may refer to mental or physical cruelty. This, thus, includes marital rape. Under this law, the maximum penalty is 3 years imprisonment and fine.
Another law, Protection of Women from Domestic Violence Act, 2005, explicitly criminalises “physical abuse, sexual abuse, verbal and emotional abuse and economic abuse” of women. The judge under this law can even evict the man from the shared marital property (which usually means his own house). This law has a maximum penalty of 1 year imprisonment for violating court’s orders and fine. You may have noticed that both these laws protect women only and are not gender neutral. Both of these laws are frequently misused by educated women to threaten their husbands. However, many real victims of marital rape are simply not aware of these laws.
The current cause of controversy is around a particular clause of the rape law, Section 375 of the Indian Penal Code. The Section 375 is the Indian law that defines rape. It has a maximum penalty of life and a minimum penalty of 7 years. But, it has an exception clause, that a husband cannot be tried under this law, as long as the wife is not a child bride under the age of 16. The feminist and liberal groups are demanding that this clause be removed and marital rape be brought at par with general rape. Some of them think that without this, women who are victims of marital rape, will otherwise have no legal recourse. This is untrue as I have already mentioned two laws addressing marital rape above. Thus, the actual debate is not whether we should criminalise marital rape, but whether marital rape should be punished under the same law as stranger rape.
This exception clause dates back to the British era. In 1889, a 10-year-old girl called Phulmoni Dasi died after her adult husband had intercourse with her. The British set the minimum age of consent to 12. Thus, as long as a bride was above 12, it was not considered rape by the British. The age of consent was later raised to 16. (Now, it is 18.)
In 2000, the Law Commission had not recommended criminalising marital rape. However, after the 2012 Delhi gang rape, this became a big issue of debate. The Justice Verma Committee in its report had recommended deleting the exception clause. (The Committee had also recommended making male rape illegal, but it was shot down by feminists.) The UPA government passed a stronger law against rape, however decided to leave marital rape laws untouched.
After the BJP government was elected in May 2014, these was little hope of rekindling the debate, as BJP draws a lot of supporters from conservative Hindus. Traditional Hindus view marriage as sacred and don’t like any laws changing its definition. In October 2014, the National Family Health Survey (NFHS) reported that 6,590 women in 100,000 were “forced them to have sexual intercourse against their will.” This is a frequently stated statistics on marital rape. (The women’s questionnaire used in the survey looked like this, see question no. 1107).
(I find it amusing that they call themselves the National Family Heath Survey, because they primarily interview women between the age of 15-49. In the 4th NFHS, 625,014 women were surveyed and only 93,065 men. The men’s questionnaire was loaded with questions like “When is a husband justified in hitting or beating his wife in?” or “What do you think a husband should do if a woman refuses to have sex with him?” So, you can forget about getting any data about male victims of rape or domestic violence from them.)
In April 2015, BJP Minister of State for Home, Haribhai Parathibhai Chaudhary told the upper house Rajya Sabha that, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, including level of education, illiteracy, poverty, myriad social customs and values, religious beliefs, the mindset of the society to treat the marriage as a sacrament.” This statement led to a lot of angry blog posts, tweets and opinion pieces.
In late April 2015, Preetika Rana writing for the Wall Street Journal trained her guns right at the ruling party with the article “Modi Government’s Reasons for Why Marital Rape is Not a Crime.” In May 2015, Hindustan Times published the article “When no is not an option: Marital rape denies right over her body” by Poulomi Banerjee which cited an UNFPA survey that “nearly one in five women interviewed spoke of having faced sexual violence from a partner in an intimate relationship”. (I couldn’t find the details of the methodology used in that survey.) In June 2015, an opinion piece titled “When even rape is legal” by one Kanika Sharma and Aashish Gupta appeared in The Hindu, which cited the above NFHS data.
In April 2016, Minister for Women Maneka Gandhi said the government was seriously considering criminalising marital rape. This is an interesting move, since in India, men cannot be raped by definition, and the MPs of this very government have blocked a bill to decriminalise same-sex acts, another British-era relic.
I would very be interested in how this law would be designed, as it would have to pander to both the feminist groups and BJP’s right-wing Hindu vote bank. It would probably give a lot of legal firepower to women, as many laws in recent years have (like the dowry laws, domestic laws and workplace harassment laws). These laws are usually designed to be too strict on men and lead to a lot of misuse by sly women. They usually don’t benefit the actual victims, as they are usually too uneducated to know about them. In many cases, the perpetrator is also equally uneducated, for the knowledge of the law to serve as a deterrent. In the end, most of these laws primarily end up as means of legal terrorism against educated men by educated women. There is now a strong need that such laws should be designed such as to prevent their misuse.
I will keep you updated on any news about this marital rape issue.