So, the hot keywords have got you in. Good. Let’s see if we can discuss this serious issue and try to stay sane at the same time. I do not mean to be flippant about this. But I do not wish to lose those particular people that this article is clearly specifically for. Oh dear! I hope I haven’t lost them already. Oh well, a “tl;dr” Instagram post should do the trick. For those of you who are here, let’s have a chat.
The issue is the so-called “marital rape exception” to Section 375 of the Indian Penal Code which states that “[s]exual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” (You can find the entire Section here. ‘Exception 2’ is right at the end.) This exception has generally been read to mean that any form of sexual intercourse, even if it is non-consensual, “by a man with his wife” is not in any way illegal.
This is not the first time this issue has come up. It has been discussed multiple times in the past. Most significantly in 2013 when the Justice Verma Committee recommended that the marriage or any intimate relationship is “not a valid defence against the crimes of rape or sexual violation”.
Central governments, since the J. S. Verma Committee, irrespective of party, have maintained the same stance. A parliamentary panel on Home Affairs headed by Venkaiah Naidu had said at the time, “the entire family system will be under great stress” if marital rape was criminalised. In August 2017 a central government affidavit said criminalisation of marital rape might destabilise the entire institution of marriage and, indeed, become “an easy tool for harassing the husbands”. It added, "What may appear to be marital rape to an individual wife, it may not appear so to others.” However, multiple judgements and court observations have suggested that for all intents and purposes marital rape is unacceptable in modern society but, legally, it is not a crime. (You can read the judgments and observations here.)
The Delhi High Court has observed that when the draconian Section 377 was struck down in 2018 (thus decriminalising homosexuality and all “unnatural sex” acts as long as it was consensual) a “misalignment” was created with Section 375 (see above). The main point of contention here, as the amicus curae pointed out, is consent. If a partner has given their explicit consent, any amount of kinky sex is fine. Enjoy yourselves. Make the devil himself blush. However, if at any point, even during, consent is withdrawn, the act becomes illegal. (Read here for more on ‘safe words’ in kink)
We haven’t even come to the issues of patriarchal society yet and the issue already immensely complex. Sticking to the legal side of things for a bit more, let us address the point about false cases. In a submission on Jan 12, the Centre has submitted that striking down the exception will lead to a slew of false cases as has happened with Section 498A which deals with cruelty towards married women by their husbands or in-laws. The Supreme Court in the Rajesh Sharma versus the state of Uttar Pradesh case had framed guidelines to protect victims of false cases from what they called “legal terrorism.” Hence, it can be said, argued, that the fear of misuse, if marital rape is formally criminalised, is well founded. The Centre has further argued that there are already safeguards for wives in the Protection of Women from Domestic Violence Act, 2005. (Read more here.)
According to the National Commission for Women, domestic violence had reached a 21-year high with the National Family Health Survey – 5 saying 70% of women who had suffered did not tell anyone. Thus, the actual number of women suffering domestic violence is much higher than the complaints filed. Thus, while women do have protection under domestic violence laws, most either have no access to a complaint mechanism or do not complain for fear of stigma or further retribution. At the same time, much as any civil law, this is prone to misuse. I could not find any clear consensus as to exactly what percentage of these cases turns out to be false or vindictive. The number ranges from as low as 10% to as high as 80%. Thus, it is not unreasonable to worry about false cases in the issue of marital rape as well.
However, the Supreme Court has recently acknowledged once again, this propensity for false cases and observed that certain laws are being misused to settle scores. In terms of false rape cases, Supreme Court judges have made various observations and judgements that are setting precedents to protect innocent men from falling victims to women simply trying to cause harm. The Delhi High Court as also observed that imposing “exemplary cost” on those who make frivolous accusations would go a long way towards solving or, at least, minimising the problem. (Read more here and here.)
The main issue here is not a legal one. It is very much social. It is the sanctity of the institution of marriage. Many people, especially women, find it difficult to simply divorce their husbands for various reasons – dependence, parental pressure, children, etc. The most significant reason is social stigma: whispers breaking out whenever you enter the room followed by furtive glances – that sort of thing. Men also often do not wish to go through divorce because they sometimes become labelled as failures or as horrible. This is not because they have abused their wives in any way but because they have failed to ‘keep’ them. The women are labelled as promiscuous or difficult because they did not ‘settle’ with their husbands. Hence, clearly, it is an institution founded not on love and affection but on very specific rules that govern both spouses. However, one must question the power structure here.
In a patriarchal society, men still have the power. No matter how much they complain that women are ‘getting too much’, they still have the power. Indeed, even as adultery has been decriminalised, women have been abused and murdered because they were only suspected of infidelity even outside of marriage. At the same time, a physical relationship is integral to a marriage and, therefore, denial of sex has been declared as mental cruelty and grounds for divorce by the Supreme Court but with certain provisos. However, neither the husband nor the law can force a woman to have sex as this would infringe upon her individual rights as the Kerala High Court has observed. There is also the issue of the privacy of the marital bed. Essentially what goes on in a marital bedroom is solely the concern of the spouses and no one else. (issue of the right to privacy act).
The hierarchy between the husband and the wife is one that has been created by society in the garb of tradition and religious custom. While every individual is free to follow their customs, certain things should fall under a civil court as courts have observed. (see references) In modern society, we no longer consider women to be the properties of their fathers or husbands even if religious wedding rituals do. Therefore, perhaps a secular civil code may be the solution here.
However, I feel that social interventions are always more efficient at dealing with social problems than legal interventions are. Patriarchy is still rampant in India despite the year being 2022. In fact, shockingly (shocking for me, you are free to find it normal) large percentages of women said in an NFHS – 5 survey that they believed husbands were well within their rights to hit their wives if they were displeased by them.
At the same time, many couples are married off because both sets of parents want to be done with their ‘responsibility’. It goes without saying that this is the reasoning of the parents of most women. These enforced marriages need to stop. I do not mean arrange marriages which are fine as long as both potential spouses have agreed to the match nor do I mean forced marriages where women, mostly, are forced to marry a man they have had no part in choosing. The later are wrong anyway. I am referring to the majority of marriages where either or both spouses had other intentions or even ambitions which were crushed by parents deciding that they should get married. These marriages inevitably lead to real resentment between spouses which can turn any relationship bitter. It is also worth noting that most of the commentators on either side of this debate are part of the urban educated sphere – like me, for example. Most reports of false cases come from only those women who have access to such remedies while the vast majority in the hinterlands are not even aware that there are laws protecting them from their husbands’ violence.
Better education is paramount. More people need to be taught about things like consent and women all over the country need to be informed of their rights. Men also need to be made aware of not only their mistakes but also the remedies they have in case they are victimised. Regulations against false cases must be included in the IPC irrespective of gender. But most importantly, we need to talk about sex as something that is normal. It is neither something that is dirty nor something that is taboo. It is also not something that is taken or given. A study shows, only mutual consent and joy can lead to a good sexual relationship.
Sex education needs to be introduced in schools with well trained specialists conducting seminars and workshops to explain to sniggering and shy teenagers about the birds and the bees. It would be even better if parents start discussing these things with their teenagers as well. Teachers also need to be sensitised so they can organise safe activities that involve both boys and girls together equally. Better education regarding the incredible importance of consent at a young age will automatically minimise incidents of abuse in my opinion.
Additionally, parents need to stop letting their sons get away with things just because ‘boys will be boys’. Discipline and learning that things need to be earned will also help many young boys learn that they will not necessarily always get exactly what they want. But, if they are willing to learn, do the work and respect the individuality of others they are more likely to succeed whether it be at earning the love of a woman or achieving success professionally.
It is important for most men to learn that equality is not necessarily a bad thing. Think about it. You are now free to pursue some of your old passions as well. If your wife is earning as much as or more than you, you can relax for the first time since you were pressured into the shit job you now have. You no longer have to be the sole breadwinner. You get to share your stress and what’s more you have someone in your corner no matter what. Earn her respect and you will not have to force yourself on her for anything.
Finally, the stigma around divorce also needs to go. If you don’t like someone, you should be free to leave them. For dependent spouses there should be well run temporary shelters, training programmes, rehabilitation and access to childcare which can be of immense help in situations where they cannot go back to their parental homes. Both marriage and divorce should be normal. There’s nothing wrong with leaving a bad relationship. However, people should decide to marry only after they are sure that they can spend the rest of their lives with that person or with the knowledge that if things do go wrong they can split up amicably.
In conclusion, the law is certainly necessary. The IPC is supposed to be a deterrent. That is why laws are made, to deter people. They are not only for punishment. The presence of a law will definitely prevent some men from forcing themselves on their wives and many others from even considering any form of imposition. However, this doesn’t mean that women should constantly hold this as a sword over the men in their lives. In order to prevent misuse of the law, all loopholes need to be deliberated and quickly, there should be punitive damages for frivolous litigation and fast track courts to prevent delaying or threatening tactics during divorce cases.
Above all, there should be significant encouragement from courts and governments for families to better teach boys about consent and teach both boys and girls about accountability
As you can see, this topic way more complicated than a simple #marriagestrike can solve. Although, if those people threatening to boycott getting married actually follow through with their threat, many problems could probably be solved. No? Not happy with that? Worried you might just end up all alone? Well then, start educating yourselves.
References:
[Disclaimer: This is neither a news article nor one that is giving legal advice. These are simply personal observations made with as much neutrality as possible and drawn from reading and conversations with like- and unlike-minded people.]
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