The Delhi High Court has challenged the marital rape exception in Section 375 of the Indian Penal Code, and while the centre deliberates, the debate online is raging. The legal debate is complex, and warranted, but the social debate is horrifying in its purview. Understand the issue better here.
Written by Aarushi Ahluwalia.
This is the story of a woman I know. Let’s call her Anita. Anita has been married for 18-years and has two children. One day, in a state of delirium, Anita called to tell me that she needed to know if there were pills she could give her husband that would ensure he couldn’t get an erection. After some discussion she revealed that he was forcing himself on a her on a nightly basis, for years, and when she resisted he accused her of cheating on him and became violent. She couldn’t take it anymore. I informed her of her rights with regard to domestic violence, and divorce, she laughed at my South-Delhi naivety about the “real” world and asked me to focus on actual solutions that were really enforceable, like drugging her husband to keep him from raping her.
Anita is not the only woman dealing with this.
Down the street from where she works, there is another woman. Let’s call her Raya. Raya was married for three years but she found that she was unhappy in her marriage. She filed for divorce, as is her right to do so. Alongside the case for divorce, her lawyer advised her to file a 498(a) case, which is the infamous well-intentioned provision that now comes as a package deal when you hire a lawyer for divorce. It is the (previously) non-baliable offence that allows women to allege harassment or abuse, and orders an immediate arrest so as to safeguard the complainant from harm or intimidation. When the divorce case between her and her husband was settled, he filed a petition to quash the 498(a) case as part of the divorce agreement, and she withdrew her complaint, successfully using the tool that exists to protect vulnerable women as a bargaining chip.
Raya is not the only woman who has done this.
Now I know, almost half of you will be angry that I told the first story, and the almost other half of you will be angry that I told the second one, but listen, how about we confront the fact that it’s enraging that I had to tell either story?
The Centre is currently contemplating a challenge to the marital rape exception in Section 375 of the Indian Penal Code (IPC) by the Delhi Hight Court. Section 375 of the IPC deals with rape, it details the six circumstances in which rape will be determined to have occured, and one exception. The exception is the bone of contention. It states: “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.]”
On the face of it, that makes me angry. Apparently Indian marriage allows the type of long-term implied consent even BDSM communities look down upon. That’s jarring, and hard to process. Just like it was jarring to process the fact that the Delhi HC chose to put that question in this format: “If a sex-worker can say no, why can’t a wife?” I get your point, but surely you know that if you put it across as a question that raises its own debate, the point is almost definitely getting missed? And it has. People are angry. Half the people are angry because it does appear as if our criminal law legitimises rape within a marriage, and the other half are angry because the removal of the exception will lead to the accusation of marital rape being misused for leverage in other cases. I understand both sides of the argument, and that depresses me.
Men feel an inalienable right over the bodies of the women they marry or even, love. I am sure many women have had that one boyfriend who absolutely wants you to take off your clothes for him, but gets upset when you wear a short skirt in public. I have had that boyfriend. He took no exception to sexual intercourse occuring between us, and removing my clothes for that purpose, but whenever I wore a low-cut top out in public of my own volition, it made him angry.
“Only I should have the right to see your body,” he would say, “I love you, and I have rights over it.”
You may not have heard that verbatim, but a variation of that story, sometimes even a romanticised variation, has been heard by a wide variety of women. That’s the heart of the right men feel over the bodies of women. They’re allowed to tell their wives what’s not appropriate to wear and many women I know, like Anita, face constant pushback from their husbands over their choices to wear anything that doesn’t fit their sensibility, even something as seemingly conservative as jeans or trousers. The argument against the criminalisation of marital rape falters for me here. The idea that it would lead to the failure of the institution of marriage and threaten the rights of men is unrealistic, marriage in India has already failed as an institution, and it has especially failed its women.
Marriage is used as a mechanism of enforcement of the social expectations placed on women. The ideas that a married woman be more focused on the household than their careers, that they dress in a way that they “look” married, they bear children and take the bulk of the responsibility to raise them, that they be emancipated from their “birth” families and put them second, that they compromise their needs and emotions to adjust to that of a man (really, this list is endless) are enforced through marriage on a large scale. Marriage has already been a disadvantagous deal for women, and saying now that the expectation that men not rape within it is so disadvantagous to men that they will go on strike against marriage is the kind of overreaction women are always being accused of. Add to that the fact that hundreds of men have openly made statements about their rights to the bodies of the women they have married, it does seem like some men would like, within a loophole, the right to rape.
Morally, this issue is very easy for me to take a stand on, just because a woman is married doesn’t mean she shouldn’t have the right to say no. That’s a horrible condition to put on marriage, and doing so makes it seem already like an institution so hollow that it shouldn’t even warrant protection.
There is law and its impact to consider here. Even if the absence of evidence fails to convict the accused (which shouldn’t be hard given that over 65% of sexual assault cases lead to an acquittal), being arrested and tried for a crime can itself damage the reputation, livelihood and mental health of a person. It is not a notion that this law could be exploited in divorce cases or property divorces, we have already seen that happen with 498(a), and it was that very exploitation that led to 489(a) being amended in recent years. While I wouldn’t go so far as to say “women take advantage of the laws made for them” as is so popular to do nowadays, I will say, most lawyers I know who work on divorce cases will agree that it’s common to file and fight this case alongside a divorce case.
And therein lies the actual problem.
The women that these laws are made to protect aren’t able to access them, and the ones who can, don’t always use them with honour. I know my feminist card can be revoked for saying that, but I’m in the business of truth, not agenda politics, and both sides of this story are true, because the laws in India govern all people on its soil, but all people on its soil don’t actually live in one country. There is the country Anita lives in, where drugging her husband to avoid being raped is more plausible and sensible than pressing charges or getting divorced, and a vast majority of women live in this country. There is the country Raya lives in, where if an additional cases helps her chances of getting a higher settlement, why not file it? So the question really comes down to which side has more victims, and it’s the women’s side, that’s why 498(a) was instituted in the first place because the women who take “advantage” are few, and the women who need protection are many. I don’t believe the law will be deliberated in this light but the discussion surrounding it is really about this — Will more men be victimized by this or more women be saved by it?
I don’t know, and I hate that the heart of the discussion is found here, in weighing the value of people’s lives and trauma to see who warrants protection. I will say, though, that in my experience, the women who need such laws (like 498(a)) are held back by society from availing them and the men who are victimized by these laws are sometimes ones who did nothing wrong. Ultimately, I have no say over the law, and I can only hope that any law we institute places higher focus on diligent, judicious enforcement than anything else, but the discussion surrounding marital rape, which is louder now than ever before, seems dangerously polarized. The institution of marriage itself is apparently under threat, and to me it seems that it may be the institution of marriage that should be on trial in the first place.
The idea that a marriage be built on the inalienable right of one partner over the body of another is why this issue is so polarized, because there are real victims, women, who every day have to face a violent reality where they have no agency and no recourse. To stand in defence of an institution that upholds that seems dishonorable, to do it because some women may take advantage of it seems demeaning to the victims and completely ignorant of the fact that marriage has extended advantages to men at the cost of women for centuries. That Indian society treats marriage like the all-ecompassing rug under which it is accept to house all women’s trauma under the garb of marital duty is the notion that we should be challenging. Whether marital rape be criminalised is a question of law over which we as yet have little control, but if your only argument against it is that hypothetical men will be victimized in the future, one must ask, why don’t you have any compassion for the real victims who already exist? Are you saying we must continue to protect men under the garb of marriage at the cost of women? Could that be why we cannot make a single law and expect it to benefit all of society?
It may be time to put the social structure of India under trail, because it has created too many monsters for a single penal code to govern.