- The Definition: Rape remains defined as penetrative sex and sexual acts enacted without the consent of all participants.
- The Exception: Yet, because marriage is considered to be sacred, consent is taken to be irreversible and constant within it.
- The Consequence: This leads to rape by spouses and separated (but undivorced) spouses to be exempt from punishment.
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Opposing Maneka Gandhi’s statement may be a case of being politically correct, gripes Renuka Chowdhury, Congress leader and former Union minister for Women and Child Welfare. But, she went on to add, it was a tricky issue and Parliament needed to be cautious. She was referring to the present minister’s written reply in Parliament that “the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education and poverty.”
Thus, while calling a woman ‘baby’ or ‘honey’ can now land catcallers in prison for upto a year, spousal rape continues to be accepted in India. And we are not alone: 48 other economically developed countries—including Singapore, Malta, Lebanon, Iraq and China—fall in this regressive category.
Most of the world, however, has moved on from the archaic exemption. Beginning with the US in the seventies and the UK in 1991, most of the western countries now have laws against marital rape. But despite the concerns voiced by the Law Commission and the recommendation of the J. S. Verma committee in 2013, both UPA and now the NDA governments have turned down the growing demand for penal provisions for marital rape.
Several studies, however, suggest that marital rape in the country is rampant and that it could be 40 times more frequent than rape by strangers. Some of the studies have pointed out that one out of seven married women in India experiences sexual violence by the husband ‘at least once’ in their married life. Meanwhile, there are other studies that suggest that only 10 per cent of rapes outside marriage and less than two per cent of rapes within marriage are reported to the police or the court.
Maneka Gandhi and minister of state (home) Kiren Rijiju had indicated last year that the government was contemplating amending the law to bring in penal provisions for marital rape. But both have since then back-pedalled, probably influenced by the report of the parliamentary standing committee on mome affairs, which said this month that doing so would hurt the ‘family system’. There are only two women members—Kirron Kher (BJP) and Kakoli Ghosh Dastidar (TMC)—in the 31-member committee.
CPI(M) politburo member BriNDA Karat says, “It is very unfortunate when the women and child welfare minister says that Indian culture sanctions rape as long as there is a marriage certificate.” The third National Family Health Survey (2005-06) had recorded the response of the majority of women who admitted that they faced the prospect of non-consensual sex in their marriages, she says. Congress leader Ambika Soni concurs: “Some kind of threat of penal action has to be there to end this.”
Madhu Kishwar, senior fellow at the Centre for the Study of Developing Societies, is even more scathing in her reaction. “Her earlier comment favouring law against marital rape was an attempt at being politically fashionable to gain mileage with leftists and feminists who think they are the sole guardians of women’s rights. And now she is trying to placate the equally misguided thekedars of Indian culture.” Those who oppose the move to consider marital rape as a crime do so on the basis that it is almost impossible to prove; but then they contradict themselves by arguing that the penal provision would encourage a large number of women to frame their innocent husbands. Which begs this question: if marital rape is so hard to prove, how likely is it that women would hazard the risk of lodging a complaint that they would not be able to substantiate?
There is also the alarmingly pervasive thought that marriage implies automatic and permanent consent to sex; or worse, the abrogation of consent itself; and that any penal provision would destroy the institution. Feminists remain extremely sceptical. A former fellow at the Indian Institute of Advanced Studies, Albeena Shakil, believes that criminalising marital rape in India is a must to establish the vital importance of consent within marriage as well as to trigger a process of ‘democratisation’ of sexual relations between partners, rather than as a one-sided entitlement of husbands.
Albeena told Outlook, “The volte-face by Maneka Gandhi not only reinforces the subservience of women expected within marriage, but also draws upon fundamentally flawed reasoning entrenched in deep class, gender, religious and customary biases. Her statement is also a poor reflection on women in politics—that rather than carrying forward a gender-sensitive sensibility in politics, women may be willing to become part of the patriarchal establishment at the cost of abandoning the cause of women.”
