Control, Paranoia, Propaganda
March 17, 2016
Under Siege: Hyderabad University
March 28, 2016

Rape Is Legal

Kruttika Kallury explains how India is failing its women by refusing to
criminalise marital rape

Once upon a time, in 17th Century, there lived a Chief Justice in England by the name of Sir Mathew Hale. He was the creator/author of what came to be known as Hale’s Dictum in English Law books, which expressly gave husbands immunity from rape laws. The reason being that the woman who agrees to enter into matrimony with the man, consents to submit completely, this includes sexually, to her husband whenever he so desired.

Cut to 1960s in England, where a five member committee was set up in order to review this legal immunity given to husbands who were accused of marital rape. As a result of the findings of this committee, almost three decades later, in October 1993, the House of Lords ruled “that in modern times the supposed marital exemption in rape forms no part of the law of England.” It also further ruled that “the husband’s immunity…no longer exists. We take the view that the time has now arrived that the law should declare that a rapist remains a rapist subject to the criminal law, irrespective of his relationship with the victim.”*

It is important to note that several laws in the Indian Penal Code have been inherited from the colonial regime. The law on marital rape, is also one such decree (the infamous Section 377 is another example). But what begs to be questioned is our reluctance to follow suit and review our law books from time to time and to amend or repeal laws that we recognize as obsolete.

Section 375 of the Indian Penal Code, which defines rape, has an exception that states, “Sexual intercourse by man with his own wife, the wife not being under 15 years of age, is not rape.” Clearly, this law is outdated as it doesn’t take into account the legal age of marriage for a girl, which has long-since been raised to 18. Furthermore, Section 376, which has provisions for the punishment of rape awards the perpetrator with seven years in prison, which may be extended and imposes a fine, unless the woman raped is his wife (with the exception that she shouldn’t be under the age of 12). This not only stands in direct contradiction of a democratic society but is also a law that flouts human rights.

A convenient argument that surfaces time and again is upholding traditional values and culture. While this reeks of patriarchy, it also raises questions of what, we as a nation, understand our culture to be. The question England’s example raises is why our governments (yes, this isn’t just a failure of the current governance) are unable to recognize and accept this evolution of social systems and why they insist on guarding patriarchal traditions and laws with such ferocity. Placing women in prominent positions of power doesn’t mask the fact that the said women are still bending over backwards to obey age-old, patriarchal customs.

When the current government was sworn in, in 2014, the recruitment of seven women in the Cabinet was widely celebrated. But two years in, the illusion of giving women power is slowly unraveling. Whether it is the HRD minister Smriti Zubin Irani’s patronising ways of making children of full-grown thinking adults or more recently, Maneka Gandhi, the minister for Women and Child Development, discounting the idea of criminalising marital rape in India, there is an uncomfortable truth of taking a giant leap backwards with these ideas. In an interview with The Hindu, UNDP Chief Helen Clark emphasized, “Its pretty clear in the circles I move in at the UN that rape is rape. The issue is the consent of the women, and if it isn’t there, it is rape.” While this should be understood and accepted by modern societies everywhere, the reality is that many countries still treat matters of domestic violence as personal and not criminal. Of the numerous reasons that were listed out by leaders who spoke against the criminalisation of marital rape, two that stick out the most are factors such as illiteracy and the traditional values of marriage as an institution that cannot be overwritten. Both of them are true, in a sense.

Sahitya Academy Award winner and women’s rights activists P Lalitha Kumari, popularly known as Olga, questions these so-called values accorded to Indian marriages while making a valid point about evolving as a society. “We need to understand what equality means. Traditional values are not sacrosanct. Indian marriage laws have changed in the past as well. If we did not believe in equal rights of man and wife, there would never have been room for divorce, especially in Hindu marriages,” she says. In all this, she lays particular emphasis on the right to equality afforded to all citizens by the Constitution of India. “When equality is a constitutional right, it makes sense to provide that right in all aspects of life, which includes encouraging marriages that are more democratic in nature,” she says.

The argument of illiteracy, on the other hand, deserves no credit. Olga points out that, “One’s target should be the removal of illiteracy, not hanging on to barbaric laws using it as an excuse.” But this lack of (access to) education also raises a very important question of awareness. When we live in a country where talking about sex itself is a taboo, women being aware of their sexual rights becomes moot. Some would argue that more women are speaking up about domestic violence, which is generally considered to be hand-in-glove with marital rape, this conversation remains unfortunately limited to the urban, educated woman. A large part of the victim pool consists of women with limited access to education and hence, legal counsel.

When Clark reiterated that domestic violence is a global problem that needs to be dealt with, she also particularly reminded us that “The PM of this country went to parliament to say the safety of women is a priority. So I wouldn’t question the commitment, but we need to make it the goal.” One can take a cynical stand and laugh this off as just another unfulfilled promise of just another government, but the ruling party should see this as a gentle, yet not-so-subtle cue for not forgetting this promise or pushing it to the sidelines. And the ministers in the cabinet need to keep this in mind before making statements that can push a society’s genuine, and very relevant struggle, for equality, back by several paces. Clark also went on to explain that the incidence of violence within the family are often treated as personal matters, even by the various machinery of law, which is why convincing the world of the significance of strict laws against domestic violence becomes that much harder. “[Secondly] assaults against women like rape and sexual assault in the home have to be treated as crimes,” she says. This in particular needs to be recognized and applied in the Indian context. According to Olga, activism is the only way to keep the movement of this struggle going forward. “We should not let such comments from leaders take away from the work that we are doing. Activists must carry on with their work regardless. In fact, this kind of view doesn’t affect their work at all, but women who are victims of such violation and humiliation, are the ones that receive such statements negatively. That is why more people should join this conversation and educate the masses about the need for ridding our society of such irrelevant traditions,” she explains.

The last National Family Health Survey (NFHS) in 2011, showed that the vast majority of sexual violence reported by women was within marriage. Only 2.3 per cent of rape that women reported to the NFHS interviewers was by men other than their husband. One in five Indian men admitted to forcing their wives into sex.  On an average, one in three women in India today is forced, beaten and abused by their intimate partner. One way of making this conversation more inclusive, and in turn, increasing awareness is by educating the youth (men and women) of this country about the need to establish an egalitarian mindset. When one half of the society lives in oppression, the impact is felt by society as a whole. Silencing these voices or pretending not to hear them cannot be the way forward for any modern, democratic nation.

*Criminal Law: Rape Within Marriage; Published by the UK Government
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