“14 February 2014, Valentine’s Day. On the day the world celebrates love, Sarita (name changed) lay in a pool of blood, tortured, humiliated and broken. The man she fell in love with and got married to in a private ceremony two years before, forced himself upon her, inserted a torch in her private parts and sodomised her. “It was bestiality at its crudest,” she recalls. “My entire body hurt. There were bite marks all across my chest and my legs refused to work.” The sexual assault on that day was the culmination of months of beatings and torture that had begun soon after marriage. Scared that her condition might deteriorate, Sarita’s in-laws rushed her to a hospital. When she regained her senses, she had lost more than what she bargained for: her unborn child. Sarita moved the Supreme Court against her husband on 17 February 2015 but the court declined to entertain her plea on the ground that hers was an individual or personal case and not a public cause…”
When Union Minister of State for Home Affairs Haribhai Parathibhai Chaudhary gave a written reply in the Rajya Sabha on 29 April to a question raised by Kanimozhi of the DMK, he was only perpetuating a centuries-old belief dating back to the Manusmriti, circa 100 AD, which codified, among others, marriage and the conduct of women and wives. Will the government amend the Indian Penal Code (IPC) to remove the exception of marital rape from the definition of rape, Kanimozhi wanted to know. To which the minister had this to say: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors, e.g., level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc (sic).”
The minister’s exposition about “social customs” and “religious beliefs” seems to amplify what the Manusmriti says about controlling wives and how it is a woman’s duty to obey and humour her husband. Except that in the case of Sarita and scores of women like her, it comes at a steep price.
“When a girl marries, she has many dreams, dreams of being loved, of leading a happy life with her partner. But the reality that I and many others like me face is different,” Sarita tells Tehelka. Love blossomed in the workplace for her and before long she was married, but not before overcoming a minor hiccup in that she came from a Muslim family while her husband is a Hindu. Unlike some other women before her, who, when faced with a similar situation, could not resolve their dilemma of whether to convert to their husband’s faith or not, Sarita decided to embrace Hinduism.
However, what started off as a perfect love story soon began to unravel: Sarita’s husband would thrash her, hurl insults at her, alternatively pour hot- and cold water on her and lock her up in the bathroom. “I could not concentrate on my job as memories of those harrowing moments would come flooding back. I can never forget them, they haunt me… The memories of the pain I suffered, they are still fresh,” she says in a resigned voice.
Sarita is one of many women who have survived marital rape — an issue that has rarely found space in India’s public discourse. According to the UN, marital rape is not a prosecutable offence in at least 53 countries, including India. As it turns out, India finds itself in the egregious company of countries such as Pakistan, Saudi Arabia, China and Russia. At least 10 percent of Indian women have survived sexual violence by their husbands.
“..The exception must necessarily be ruled out because it contradicts the constitutional right to equality and the right to life. After the amendment of the criminal law, the consent of the woman has been made central, regardless of the relationship shared between the woman and perpetrator of the crime (in this case, marriage)..” – Vrinda Grover (lawyer)
Ironically, Sarita’s case evokes many parallels with the infamous 16 December 2012 gangrape of Jyoti Singh Pandey, a 23-year-old paramedical student, in New Delhi. Both cases stand out for their brutality but in the eyes of the law, only Jyoti’s offenders could be tried for rape, not Sarita’s husband as the law does not recognise rape within marriage as a criminal offence. Section 375 of the IPC says that “sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape”. This exception has ranged a section of the legal fraternity, NGOs and social activists against the executive, judiciary and Parliament alike.
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“The exception must necessarily be ruled out because it contradicts the constitutional right to equality and the right to life. After the amendment to the criminal law, the consent of the woman has been made central, regardless of the relationship shared between the woman and the perpetrator of the crime,” lawyer Vrinda Grover tells Tehelka.
Another lawyer, Karuna Nundy, feels that the distinction sought to be drawn between rapes taking place in a marriage and rapes outside of it is illogical. “The fact that people are told some rapes are sacred and some are criminal is the worst kind of violence against women,” Nundy tells Tehelka. Meenakshi Ganguly, South Asia director of Human Rights Watch, an international NGO, takes Chaudhary head on for suggesting that the institution of marriage needs protection. “It is not the State’s job to promote culture (the institution of marriage); it should instead focus on protecting the rights of its citizens, in this case women,” she tells Tehelka.
“..It is not the State’s job to promote culture (the institution of marriage). It should instead focus on protecting the rights of its citizens, in this case women..” – Meenakshi Ganguly (South Asia Director, Human Rights Watch)
The only improvement in the years after the 16 December 2012 gangrape has been that under the Criminal Law (Amendment) Act, 2013, sexual assault by a husband upon his wife during separation (when divorce has not been granted, but they are living separately under judicial separation) is a cognisable, non-bailable offence (Section 376B). The section prescribes imprisonment for not less than two years but which may extend to seven years, along with a fine.
However, this has failed to satisfy activists and feminists, who say that the non-inclusion of forced sex within marriage is something obnoxious and abominable. A legal expert, Anil Kaul, goes to the extent of saying that it is all “constructed myopia and deliberate intent to obfuscate the real issue, which is exploitation of a very cruel and basic sort”. According to him, the idea is to “institutionalise” the hypocrisy of the social system.
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