There can be no two ways to go about addressing rape. A rape is a rape whether it is on the street or inside the bedroom of a married couple. Even if the perpetrator is a husband, a father, a brother or a boyfriend, any rape that occurs within or outside the walls of a home cannot be seen as a lesser act of sexual violence. Yet, if such simple facts were used as a yardstick in formulating progressive laws and legislative reforms, our judiciary and political organisations would have leapfrogged their way to a better democratic and egalitarian society.
In 2012, it took the gruesome gangrape of Nirbhaya to set in motion a series of events that brought rape to the mainstream political imagination of the country. Chief among these was the formation of the Justice JS Verma Committee on Amendments to Criminal Law. In its report, along with several suggestions, the committee had addressed the long-standing issue of differentiating rape within marriage from rape outside marriage. Noting that sexual assault should be defined to include non-consensual and nonpenetrative touching of a sexual nature, the committee recommended that the exemption provided to marital rape under the Indian Penal Code (IPC) be removed.
However, in a throwback to their earlier interventions regarding progressive laws, when the recommendations were sent to the Parliamentary Standing Committee on Home Affairs, everyone except two members on the panel rejected the Verma committee’s suggestions outright.
So, what is it that makes our parliamentarians so paranoid when it comes to dealing with the issue of marital rape?
“According to the findings of a number of surveys and reports in the media, the economic and social conditions of our region put women in disadvantageous positions. The Justice Verma committee has recommended certain things in this regard but the question is how much can the law monitor activities of people living consensually with each other. That’s why there is need for a national debate on the issue. A consensus should be built on what should be enacted as law. A law against marital rape should not be misused for settling all divorce cases,” Shakeel Ahmad, national general secretary of the Congress tells Tehelka.
Some of the concerns raised by several politicians have been loosely based on two social myths: one, a married woman could misuse the law to get even with her spouse; and two, the law must not encroach upon the privacy of a married couple’s bedroom. As BJP MP Mahesh Giri puts it, “In cases of marital rape, officials at the police station should decide whether the complaint deserves to be registered by looking at the specifics. Otherwise, as it happens in many instances, a woman would make allegations of rape in order to take revenge against her husband.”
It was one of the achievements of the intense women’s movements in the 1980s that several women’s issues were directly translated into legislative reforms. During the same period, the legislation linking ‘dowry harassment’ and ‘dowry death’ to domestic violence was put under scrutiny. Since the law as it stood then only linked domestic violence to dowry, an amendment to the Indian Penal Code (IPC) was deemed necessary. It was in this context that the Domestic Violence (Prevention) Act (DVA) had come into being in 1998.
Apart from identifying all forms of violence (physical, sexual and emotional) suffered by women within their families, the DVA 1998 also did away with the notion of dowry being the sole factor behind domestic violence. The Act further acknowledged that not only mothers, daughters, sisters or wives but also women in informal relationships could be victims/survivors of domestic violence. While the DVA opened the doors to progressive gender politics, the question of the potential misuse of law — the same doubts that politicians such as Giri and Ahmad raise in the context of marital rape — came to the fore when a few of the reported cases under the 1998 Act were found to be false. However, when one looks at the numbers of these false cases they clearly come across as negligible compared to the unreported cases of domestic violence
The argument that someone with a vested interest can misuse a law dealing with domestic violence to settle scores did not prevent it from being enacted in 1998 and further strengthened in 2005 with the introduction of the Protection of Women from Domestic Violence Act. The potential-misuse argument loses its sting when one considers the interests of a much larger number of women to whom it provides a legal way to deal with violence inside the home.
The issue of legal responses to marital rape becomes clearer when one looks at the nature of sexual violence in India. According to the National Family Health Survey (NFHS), 2005, husbands, and not ‘other’ men, committed most of the acts of sexual violence. This implies that the battle against sexual violence in India is seriously hamstrung by the exemption that the existing rape laws grant to a perpetrator who happens to be legally wedded to the victim.