Minister 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. To her question on the
criminalisation of marital rape, our esteemed minister (not the first
of his ilk to go down that path) said that marital rape as understood
internationally couldn't be applied to India, due to factors like
illiteracy, poverty, social customs, religious beliefs and the
treatment of marriage as a sacrament. In essence, his stand, like so many others before him, and like such a huge majority of general
Indians, is that once a woman agrees to a marriage, there is no
question of force, because she MUST have sex with her husband, when,
and how, he wants. So, how can there be rape? In other words, a
woman loses her fundamental rights as soon as she chooses to enter
wedlock (in the world's LARGEST democracy, as we like to boast).
Every time India is forced to confront
or even consider the issue of marital rape, the country's
parliamentarians, judges, and general public trot out an old and
oft-repeated list of arguments against any move towards criminalizing
the act. Foremost among them is the idea that marriage is sacred in
India. Many, if not most, married women in india (or in Indian
communities abroad) would disagree. For too many Indian women across
the country, and elsewhere, marriage is no more sacred than being
trapped in a torture chamber. Some of the forms of sadism practised
in Indian marriages would make hardened criminals and sadistic prison
guards cringe. Here are some cases, (from my own experience as well
as from various sources including NGOs i have been associated with.
The first time her husband raped Pinki
was, (like a majority of women in arranged marriages) on their
wedding night. She was an ace student getting her master's degree in
science from a prestigious university. Engaged to a man she saw just
once for roughly 20 mins, a month before her final exams, she was
married off as soon as the exams were over. Her nightmare began from
the first night of her “honeymoon”, as it does for so many.
Unprepared, uncomfortable, and hoping for some kind words, a building
up of a relationship, what she got instead was her HUSBAND forcing
himself on her, quite brutally. When they came back to their two
bedroom home in mumbai, which she shared with her parents-in-law and
sister-in-law, the bedroom door was always open, everyone's things
kept in everyone's space so people walked in and out as they liked,
yet, she was required to make herself available to her husband's
whims whenever and however he wished, never mind her discomfort with
the lack of privacy. There was also no question of contraception, and
she had no say in the matter. Like a vast majority of indian men he
refused to consider condoms, and she was not allowed to even visit a
gynaecologist, let alone ask for some other method of family
planning.
Sheela was only 18 years old when she
was married to a man she barely knew, she didn’t think that he
would demand sex on the very night they got married, but he did. She
wasn’t ready for it, but that didn’t matter.
Reena wanted to wait a few days until
the relatives had left, and the nieces and nephews were not sleeping
behind the curtain partition. However, what she wanted was as
immaterial as it usually is, and her husband forced himself on her,
without any regard for her physical or emotional readiness, until she
could barely walk (not that “resting” would be an option.
Remember these women also have to get up in the morning and discharge
all the duties of a good “daughter in law”. Unless she is so
injured she in need of medical assistance, she wont get help or rest,
and sometimes not even then).
For many years after her marriage,
Rashmi believed that frequent bleeding after intercourse was normal
for women. Married at 17, her husband would assault her six to seven
times a day, with no regard to her arousal or comfort. At 19, when
she conceived her first child, she was forced to have intercourse
whenever he wanted till the eighth month of her pregnancy, regardless
of how she was feeling. Barely 15 days after she had a delivery by
C-section, her husband assaulted her so badly that it led to the
rupture of her stitches. When she tried to raise her voice, her
mother mocked "This is normal. It happens to everyone. Husbands
don't rape you, they are allowed to do all that."
Sarita's husband forced himself on
her, inserted a flashlight into her vagina, and sodomised her
brutally to the point where she could't walk.
Astha was so violently assaulted by her
husband that she was bleeding profusely and had suffered anal tears,
when she went to the doctor.
Vandana's husband regularly bound her
hands and feet while he forced himself on her because she objected to
certain sexual acts.
Reema's husband transmitted an STD
(sexually transmitted disease) to her which caused severe vaginal
infection and painful boils. Then, in spite of her discomfort and
pain he not only refused to have them treated, but continued to rape
her leaving her in pool of blood most of the time. His reason for the
uncaring attitude? "It is you who are in pain, not me,"
The first full sentence Ketki heard
from her husband was “Show me your thighs”. When she didint
comply immediately, she got, “Don’t make me yell!” Still a
little slow to react, she was grabbed by the hair and groped and
violently torn into until she lay bleeding.
Sheen's husband regularly got drunk,
beat her ruthlessly and then demanded sex. During her first
pregnancy, he insisted on regular sex even after the doctor had
advised against it for a brief period. This caused a miscarriage, but
that was no respite, things went on as before and she was pregnant
again in a couple of months. When she got up the nerves to walk into
a police station, three years after her marriage, when his behaviour
started putting her in the hospital, “They were very sympathetic,
gave me a cup of tea and told me to go back home and ‘adjust’”.
She did, That was a huge mistake. What she viewed as a
compromise, he obviously saw as victory. Given that she now knew she
had nowhere to go, she had to give in to his whims. Her parents, when
told, came up with the classic Indian excuse that keeps so much
unfairness and justice thriving in our society “what will people
think?”
Neeta's husband expected her to have
sex for six to eight hours a night after using Viagra, leaving her in
so much discomfort that she could barely walk the next day, proving
his manliness (that every problematic MARDANGI that causes so much
nastiness) inflicting great pain in the process, and with no concern
for her feelings or health.
Sabina often fainted during or after
intercourse, the agony was so great.
Asha's husband forced her to have sex
during her labour pains.
Lata's husband administered electric
shocks to her vaginal area and regularly used extreme force while
having sex.
The list is endless, and each case more
horrifying than the last. If any of these offences had been
perpetrated by a person outside the family, he would be booked and
prosecuted for sexual assault, and rape, but when the perpetrator is
the husband, there is no legal recourse, nowhere to go, no one to
complain to, and no law to save the woman. As for the man, he gets
away scot-free, every time.
And this doesn't even begin to talk
about the thousands and hundreds of thousands of women who are just
“persuaded” when they are not in the mood, but their husbands
are, or who are never even asked whether they have a mood or not. Not
all cases are extreme or involve overt violence. In most cases
neither the man nor the woman have any concept of consent, and sex
within the marriage happens when and how HE wants, never mind if she
wants it or not.
Arranged marriages are glorified in
India, considered the only proper way to find a spouse, and love
matches are still a little bit suspect, off the track, and considered
flimsy because they apparantly “dont last”. Yet what is the
definition of a successful marriage in India? Simply one that doesnt
end in a divorce, never mind how it lasts or what the cost. And,
usually, the woman pays the biggest price for this Lasting Marriage
that is so prized in our society.
Given our social taboos, and overall
reluctance to talk about anything really important, and the
segregation and overprotection of girls practiced in the majority of
homes, a large majority of Indian women don’t know anything about
sex when they get married. A common argument against criminalisation
of marital rape (or making the claim that no such thing actually exists) is
that when women in India get married they are fully prepared to start
having sex with their husbands immediately. The problem here is that
women only have a very vague idea of what that involves, often
drawing their ideas only from Bollywood films and vague murmurings
from married friends/cousins which leads them to expect soft focus,
rose petals and mogra, hugging kissing and gentle teasing, if
anything. The reality is far from their idea. Even regular normal,
consensual sex for the first time is anything but flowery and fuzzy,
with a lot of physical and mental discomfort involved, let alone the
kind of sex they are likely to get from their sex starved, equally
clueless, brought up on porn husbands who suddenly have this slave,
this sexdoll as it were, to do anything they wish with.
And this is not a problem in the
“uneducated lower classes” as we like to think. In big companies,
in corporates, in colleges, in my own experiences in hostels, at
work, and social circles (all educated women from the middle or upper
middle classes, all from or in cosmopolitan cities), I have
constantly met women who were totally clueless. Women who were going
to be horrified and really upset on their “First Night” as we so
eloquently call it. Most of them have only sketchy concepts of
kissing, with nothing more than hugging and fondling to follow. They
would be horrified at the real mechanics involved. Even in cases
where the husband is nice enough to wait a little while, they are not
likely get a long enough respite to really be ready mentally and
emotionally, and will surely be raped – violently or otherwise –
soon enough.
How it normally goes is this. In a
majority of cases the girl still gets only a few, supervised, chances
to see or interact with the man soon to be her husband. On the night
of the wedding, or a few days before (if she is lucky, and her mother
extremely unusual) her mother would give her some kind of a cringing,
embarrassed, vague talk about wifely duties which mainly run along
the lines of he has all the rights, do what he wants, when he wants
it. Still dazed and overwhelmed with the enormous endeavour and
production that is an Indian wedding, the next thing she is likely to
know is suddenly being locked up in a room with her new husband.
Given that neither of them has a real clue, and they have mutually
inmical ideas of how the next few hours should go, what can you
expect? She expects flowery language, soft focus fuzziness, and
nameless ROMANCE. He's been gorging on rough porn and not only
expects her to behave like an experienced porn star, but also thinks
he has to prove his “man” credentials by doing it immediately,
and doing it hard, fast, and rough. Add to this the foregone
confirmed belief that he has the ABSOLUTE right to do anything he
wishes to her and she cannot say no, and you have the prime recipe
for disaster.
Unless things get really badly out of
hand, no one really sees a problem with this. And even if things DO
get out of hand, as in the few cases i stated (which are far from
isolated incidents), there isn't any real legal recourse, or social
support structure. When pushed to extremes, women have only one
option, lodge complaints of physical abuse, but do not want to talk
of marital rape. 79% of the women who reach out for medical help
report domestic violence, of which only 48% actually report sexual
violence within the marriage, says Sangeeta Rege of Dilaasa, a
hospital-based crisis centre in Mumbai. The problem is that other
forms of domestic violence, like broken bones and cuts are easily
visible, but women are reluctant to talk about sexual violence even
when they're bleeding and can barely walk, according to a
spokesperson from Vimochana, a women's organization in Bengaluru.
And yet, what numbers there are tell a
different story. In 2013, a United Nations survey found that nearly a
quarter of 10,000 men questioned, admitted to having raped a female
partner. The belief that they are entitled to sex even without
their partner’s consent is a common state of affairs. Studies clearly show that sexual
violence within marriages in India is common. The data includes the
National Family Health Survey (NFHS) and studies by the International
Centre for Women (ICRW) and United Nations Population Fund (UNPFA).
The landmark study was conducted in eight States only: Punjab,
Haryana, Uttar Pradesh, Rajasthan, Gujarat, Maharashtra, Madhya
Pradesh and Odisha. It covered 9,205 men and 3,158 women aged 18-49,
and the sample was representative across caste, religious and income
groups.
Here's what they show. ONE THIRD of the men in these States admitted to having forced a sexual act upon their wives/ partners at some point in their lives. The last NFHS
showed that the vast majority of sexual violence reported by women
was within the marriage; ONLY 2.3 PER CENT
of rape reported to the NFHS interviewers was by men
other than the husband. Overall, what these numbers clearly show is
that sexual violence within marriages is undeniably and
unquestionably common. The UNPF report shows that about 75% Indian
married women live in a marital sexual hell because of our social
blindness and cultural injustice. At any given time, a majority of
the calls received on women's helplines to report domestic violence
include sexual violence.
Despite the evidence, minister of
state for home, Haribhai Parthibhai Chaudhary told Parliament that
marriage is a “sacrament” and that the concept of marital rape
cannot be applied to India. How ironic, and how perfectly Indian.
Marriage is a sacrament. But it is perfectly legal to rape your wife.
“It is concerning when government starts talking about culture and
tradition to justify crime,” says Meenakshi Ganguly, South Asia
director at Human Rights Watch. “When the state makes culture a
reason to refuse to legislate on what is clearly a criminal matter,
what message percolates down the line to the entire criminal justice
system?” Says advocate
Seema Misra, with the women's organisation Association for Advocacy
and Legal Initiatives, in Uttar Pradesh, “You are basically
saying that a wife’s consent doesn’t matter, that we are still
stuck with the outdated notion that women are the property of men,”
And this has deep patriarchal roots.
To address issues of consent,
you have to recognise that the woman has agency, that she owns her
own body, and that she has an opinion on sex/sexuality. Essentially,
all of these are things patriarchy CANNOT acknowledge. Women
are not supposed to either want or enjoy sex, because if they do, how
will you control them and their reproductive rights? So, in their
twisted logic, since she cannot enjoy it, and never wants it, where
is the question of saying yes? Ever? She is just an inert vessel for
the propogation of the man's lineage, so all she has the right to do
is say yes when her lord and master puts forth a demand. If a woman
is seen to want or enjoy sex, "they're not viewed as good women.
In order to respect a woman's right not to have sex when she doesn't
want it, we must respect her right to ask for sex when she wants it,"
says Manisha Gupte of MASUM, and therein lies the problem. That's
what is behind killing women who marry for love, marry intercaste,
marry inter community, or simply want to wear what they want. It all
implies an agency, a choice being exercised in the sexual arena...
UNACCEPTABLE.
Manisha Gupte, of rural feminist
organization MASUM says "It's important to examine
non-consensual marital sex even if it is not marked by outward signs
of violence." Lawyer, Karuna Nundy, feels (and i agree) that
trying to draw a distinction 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.” Meenakshi Ganguly, South Asia director of
Human Rights Watch, disagrees 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”.
“Many people were concerned that if
made a crime, marital rape would be misused or be difficult to prove
or would result in the unnecessary break-up of marriages,” says
Leila Seth, former chief justice of Himachal Pradesh. But, is that
enough reason to not make the law? The same concerns were raised when
the Protection
of Women from Domestic Violence Act was
being debated. However, the fact that a law could potentially be
misused by a few is no reason to NOT make a law that can benefit and
protect millions!
As for the question of “how do you
prove marital rape?” You have only to visit the outpatient
departments of any government hospital and you will see the number of
married women coming in for treatment and the grievous injuries
caused by sexual assault. As Mrinal Satish, associate professor at
the National Law University, Delhi says, “Just because something is
difficult to prove, it does not mean that you cannot have a law
against it,”
There are those who argue that sexual
assault is covered by the existing Domestic Violence Act. But this
Act is a civil law and only gives some relief to abused wives,
provides them a way out, if they need it. She can, under this law,
seek protection or get civil relief, but it does not provide for
criminal prosecution. So she may get a bit of relief...if at
all...but he would never be punished.
India needs to recognize that rape is a
crime, no matter who does it. But there's an essentially blind
spot here. Every since the Nirbhaya case, public patience is running
thin on the issue of rape by strangers. Yet the idea that the home
could also be a dangerous place and needs to have legal machinery to
protect women finds fewer supporters. For many, if not most, Indians,
the idea of sexual consent in marriage is an anomaly. Our cultures,
our languages define rape ONLY as loss of virginity or loss of
honour. Izzat lut jana. And this can only happen if an unmarried
woman is attacked by an outsider, or a married woman by someone other
than her owner/husband. After all it is the family's izzat that she
bears in her body, maiden or wife. This is also the major source of
the social stigma and shaming of the survivor. After all she, and by
extension her family/clan, has been dis-honoured. So the comments of
“zinda lash” and the encouragement to suicide. So, how can a
husband rape his wife? She is his wife! (said in the same tone of
voice as “it is his car”). Educated, middleclass, so-called
modern indians have this blidspot too (i've met too many, brrr!).
Our mentality doesnt understand the
concept of consent before every sexual encounter. “If she’s given
her consent to marriage, then by definition, she is consenting to a
sexual relationship. It’s possible that at times she may not be
well or feel like having sex and the husband might insist, but by
that definition every husband will become a rapist and there is no
way prove such marital rape unless it is associated with domestic
violence,” says Dr Suneeta Mittal, director and head, (department
of obstetrics and gynaecology) at Fortis Memorial Research Institute,
Gurgaon. And sadly, that is how too many Indians feel. And you just
CANNOT explain to these people that YES, anyone who insists or forces
sex when the partner is unwilling (for whatever reason) IS a rapist.
AS FOR THE LAW, it falls neatly in with
our patriarchal and far outdated “culture” and social mores (more
is the pity). According to the Indian Penal Code, "Sexual
intercourse by a man with his own wife, the wife not being under
fifteen years of age, is not rape". While the Justice Verma
Committee -set up after the Nirbhaya rape case -recommended
criminalizing marital rape, the parliamentary standing committee
headed by the BJP's Venkaiah Naidu rejected the proposal. And opined
that "If marital rape is brought under the law, the entire
family system will be under great stress." (So, asking a man to
respect his spouse and pay attention to her wants/needs will destroy
the great Indian marriage! Well, maybe it SHOULD be destroyed then!)
In another supremely ironic and
farcical move, the government decided to raise the age of consent,
(the legal age when a girl is deemed capable of consenting to sex) in
2013 — from 16 to 18 years. Simply put. any sex with a girl below
the age of 18 is statutory rape, even if she wants it, even if it is
in a consensual relationship. OH! BUT WAIT! What if that girl is a
wife? After all India is a country with a massive number of child
marriages, where girls anywhere between 11 and 17 are regularly
married off! In fact in certain segments 18 is considered practically
unmarriageable. Here’s where the real fun contradictions lie.
Although the legal age of marriage as well as consent is 18 for girls
(shouldn't that make any marriage with a girl below 18 invalid?)
Provided your wife is over 15 years old (and no one will ask you HOW you got a wife that young when it is against the law! Wink! Wink!), it
is perfectly legal for you to have sex with them -- with or without
their consent. Suddenly, with one magic act of “marriage” neither
the law for age of consent, nor the law for age of marriage apply
anymore!
When it is clearly illegal to beat,
cheat, torture or burn-alive a spouse – then why do we hesitate
when faced with the idea that forced sex with anyone, (even your
spouse) should not be a legal right? Why is it felt that allowing
rapes to take place regularly and routinely within marriages
strengthens the Institution of Marriage? What kind of institution IS
it if this is the case? What kind of marriages are these that are
strengthened by repeated and regular sexual torture and subjugation
of one “partner”? Why do we need to protect or strengthen any
Institution by such ways and means that puts innocent citizens
(roughly half of the population at that) at an almost certainty of
being sexually assaulted? What kind of people, what kind of society,
what kind of culture, benefits from such an institution that feels
weakened without sexual assaults being permitted to happen within it?
As for Culture, Society, and how this
will bring the end of the world? Nepal, a Hindu kingdom, has made
marital rape a crime, and seems to have survived without its "culture"
crumbling under the weight of such protection and inclusivity for
women. On the flipside, India is in the company of 30-odd other
countries, that do not criminalise marital rape, including China,
Afghanistan, Pakistan, Bangladesh and Saudi Arabia. Is this the
company we want to keep?
Why is it that once a man has been
married to a woman, even when she is legally separated from him, and
rape is actually acknowledged, it is seen as a lesser crime? The idea
that when a man marries a woman, he is entitled to Dowry, Male
children, Sex on demand and an Obedient servant and care giver for his parents is
not only unfair and unjust, it is unconstitutional in a democracy
given that it essentially eliminates the woman's ability to choose,
refuse, and exercise basic rights.
There can be no two ways about it.
A rape is a rape whether it is on the street or inside the bedroom,
whether the rapist is a stranger or the husband. Why is it so
difficult to get Indians to understand or acknowledge that women own
their bodies, have a right to say no, and sex without consent is
rape. Doesnt matter who does it, doesnt matter what their
relationship to the victim, it is rape.
