A husband can rape his wife, why can't our MPs get this?
Let's first applaud parliamentarians for their umpteen efforts in the Budget session. Unlike the sessions before, we saw some real debates, discussion and theatrics on a variety of issues.
One among them was the constitutionality of marital rape and an appeal to scrap Exception 2 in Section 375 of Indian Penal Code (IPC), which sanctions sexual intercourse, even if forced, between a married couple, if the wife is over 15 years of age.
In a written reply in Rajya Sabha, the minister for women and child development Maneka Gandhi wrote, "It is considered 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/illiteracy, poverty."
The statement is appalling on many grounds. What strikes the most however is the tenacity to substantiate, rather than dispute, a regressive law in the Constitution on the grounds of social circumstances. By this statement alone, the government armoured the belief that women relinquish the autonomy over their bodies as soon as they are bound by marital custom.
It is abysmal that the minister referred to marital rape as a concept, not a crime, thus suggesting that husbands can subject their wives to any sort of sexual abuse, without their consent and yet cannot be labelled as criminals. Literally classifying and endorsing rape committed by husbands.
The argument that India simply cannot imitate the West in its approach towards marital rape is laughable. A country which borrows its Constitution from the Westminster, embodies the best of ideas from France, America and Australia, and whose criminal and civil laws date back to the 17th century British era, should by no means brush aside something as serious as marital rape, as a Western concept.
Another inconsistent reasoning behind not amending the law, as suggested by the minister is poverty, literacy or education level in the country. The argument simply makes you wonder what would be the state of the country, had the reform advocate factored in education and poverty, before setting change in motion.
Would it have been possible to instate anti-dowry law, universal suffrage, and abolition of sati? If it was the existing social state that defined the outreach of reforms, the Indian justice system would be an extension of khap panchayat today.
If one clearly reads the written reply by the Maneka Gandhi, we realise that it is in fact word-by-word similar to the written reply put forth by Haribhai Chaudhary, minister of state for home affairs in Parliament last year. The government consistently maintains that the country is far from acknowledging marital rape as a reality, despite alarming evidence of sexual violence at home, gathered by National Family Health Survey (NFHS).
Finding of the survey, widely reported in the media, suggest that only 0.6 per cent of the sexual violence committed by married men is reported to the police, which in turn is booked as "cruelty" by man.
While women can seek protection under the Domestic Violence Act of 2005, they cannot bring criminal charges if violated by their own spouse. Even as our neighbouring countries like Bhutan and Nepal have outlawed marital rape, there is no reason as to why we should look up to China, Afghanistan, Pakistan and Saudi Arabia (countries that do not criminalise marital rape) for their outstanding record in gender equality and women empowerment.
Maneka Gandhi further went on to add in her reply that, "myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc" makes it difficult on act on the subject. In this regard, it's important that the sacrosanct nature of marriage should not be used as a veil to protect rapists.
Our failure to recognise that marital rape is real is an affirmation of the tacit belief that women are men's property after marriage and more so, it's their duty to please their partners. The clandestine nature of the affair and lack of constitutional remedy simply dejects women from coming forward, when subject to abuse.
Minister of state for home affairs Kiran Rijiju said in December last year that "the issue of marital rape is very complicated and it is very difficult to explain and describe it. These are of such extreme private nature and no records of any consent are available."
Even if we agree that consent clause is difficult to establish in marital rape, it calls for due diligence, but it should not prohibit government from legislating.
It's not a party specific contention, for the Congress too did not have the spine to implement the recommendation of Justice Verma Committee report in 2013 on marital rape. The committee argued that "relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity."
So while the issue of marital rape has been dealt extensively by the Parliamentary Committee and Law Commission, no government till date has been able to bring in the much needed reform.
The patriarchal cloud over the conviction of legislators, to hold married men accountable for any misdemeanour, makes it essential that we reiterate; rape is an act of domination and should by no means be treated any differently, even when perpetuated under the confines of matrimony.