How we allow husbands to rape their wives

Why is the idea of criminalising marital rape so repulsive? In the ongoing debate on consent, sexual and reproductive rights suddenly marital rape is coming out of the closet. And every time it is brought forth in public discussions it is met with a collective squeamishness that positions marriage as a sacrament and thus beyond reproach.

When minister of state for home affairs, Haribhai Parathibhai Chaudhary clarified the government’s stance on why marital rape cannot be under the purview of criminal laws on rape — he invoked the status of Indian marriage as a sacrament and therefore beyond, in some senses, from the polluted profane, criminal world of rape.

Violence

The sacralisation of marriage into a lifelong bond of sexual consent eliminates the idea of any lack of consent. Marriage as an institution stands for consent to enter into socially sanctioned sexual relations with a person of the opposite sex in a lifelong relationship of monogamous commitment.

Such an ideal representation has been shattered and challenged over the years through the rise of divorce, domestic violence and the emergence of alternative, equally legitimate relationships as inscribed in the idea of marriage equality for the LGBT community. However, the threat of identifying marital rape as rape and sexual abuse is the most potent form of opposition to the institution of marriage.

Not that Indian laws are silent on the existence of marital sexual violence: In Section 498 A of the Indian Penal Code cruelty in the form of physical and mental harassment by the husband and the family is punishable with a maximum prison term of three years; under the Domestic Violence Act forced sex by the husband comes under the purview of cruelty and entitles the wife to civil protection; and in Section 375 of the IPC the definition of rape excludes sexual intercourse between husband and wife except where the wife is below 15 years of age.

Legislation

Do we then need to "rock-the-boat" by introducing legislation that criminalises forced sex within marriage? The law however has what can be described as a schizophrenic-conflicted stance towards marriage as sociologist Patricia Uberoi finds in her analysis of divorce and other cases of marital conflict. So even though the contemporary Hindu Marriage Act and the Special Marriages Act are oriented towards a Western contractual model, judges are often conflicted in their judgements with regard to a petitioner’s rights to their spouse. Take for instance, the law regarding restoration of conjugal rights that aims to literally "restore" the conjugal-sexual rights of an aggrieved spouse. This law is in direct contravention to the laws mentioned above and to a law, if ever it is passed, on marital rape. Judges and judgements are unable to reconcile these oppositions in traditional thought and contemporary rights-based law.

Hindu marriage is eulogised as a sacrament in opposition to being a contract primarily because it is embedded within a familial network. Traditional perceptions of "saat janamon ka bandhan" rest solidly on the idea that a marriage is undertaken by two families, descent groups and biradaris. The bride and groom are mere functionaries within a larger exchange — which is why the reluctance towards "love marriage" or self-choice marriages pre-dominate the Indian social mindset. Within such an understanding of marriage any form of opposition to dissolve a tie between families has been seen as revolting — akin to a rebellion.

It is no wonder then that recent "fear" of rising divorces in urban India and of equally alarming rates of "false" domestic violence cases are social reactions to the collapsing institution of the "sacred" marital tie. Women unwilling to "adjust" or "compromise" are being blamed for failed marriages.

Recognition

The practices and corresponding idea that a woman must become kin to her husband’s family in name, gotra and body seem increasingly archaic, especially since the transition is one-sided. Sex becomes an unquestioned, unchallenged act within such an institution. It is no wonder then that marital rape and the recognition of its existence, even socially, is like the final nail in the coffin.

Not all marriages are sacraments, and the unwillingness to deem them so is leading to fears among legislators on how to prevent the ultimate collapse of a foundational social institution. Linked to its collapse many believe and allege is the growing desire for individualism, choice and consent. Aspects that emerge in the demand for the recognition of marital rape as a crime.