India | Why marital rape is not a punishable offense in India

Why marital rape is not a punishable offense in India

April 1, 2016 9:09 AM (UTC+8)

 

Nandita (name changed) was from a traditional, well-to-do Indian family. As is customary, she was married off at 18. When Nandita moved to her husband’s home, her dreams of building a new life turned into a nightmare.

On her wedding night, her husband tied her up to the bedpost and brutally raped her. Without any remorse, the man admitted that it has been his lifelong fantasy to rape his wife on his wedding night.

Shekhar Kapoor's Bandit Queen portrays the brutal rape of 9-year-old Phoolan Devi
Shekhar Kapoor’s Bandit Queen portrays the brutal rape of 9-year-old Phoolan Devi

Nandita survived 12 long years of bad marriage, and the violence continued even during her pregnancy. Whenever she refused to oblige, her husband would kick her on her swollen stomach.

“I had a cocooned existence before I got married. After marriage, I was subject to violence and never knew there could be love between a man and a woman. My mother always made sure that I return home from college before dark. She would never let me go partying. I was allowed to mix only with girls. My parents were perpetually scared of sexual predators all around but they never knew that the man they meticulously chose for me would turn out to be a sexual abuser,” Nandita said.

Smita Sharma, who is documenting life stories of rape victims in India through photographs (http://atimes.com/2016/01/kickstarting-a-whole-new-dialogue-on-rape/), recently shared Chittama’s (name changed) story on her Facebook wall. Chittama was married at 15. After five days of marriage, she found out that she was the fourth wife of her alcoholic husband. A month later, her father-in-law forced her to have sex with him. Her refusal to obey him angered the family. Chittama was then brutally raped by her father-in-law and sexually assaulted with objects such as sticks, rods and pieces of glass. Her husband and brother-in-law assisted her father-in-law while he raped her. This continued for 10 years until she decided to leave the house and seek divorce.

Shekhar Kapoor’s Bandit Queen, released in 1994, is a film based on the life of the notorious bandit Phoolan Devi. The movie portrays the brutal rape of 9-year-old Phoolan by her older husband. Like Phoolan Devi, many women in India are subject to sexual abuse by their husbands.

There can be nothing more painful and pathetic than marital rape. It gains an even more heinous perspective in India because women usually leave their maiden life behind to build a new one with their husband. Yet marital rape fails to become a punishable offense in India.

India’s National Crime records bureau shows a whopping rise in recorded cases of domestic violence over a period of 10 years. From 50,703 cases in 2003, the number of reported cases went up to 118,866 in 2013.

A 2015 Indian Planning Commission Survey shows that more than 40% married women have faced violence in their homes.

Despite these statistics and a long fight on the part of feminists and activists, Maneka Gandhi, minister of women and child development in a statement, said: “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.”

There are mainly four reasons that stand in the way of making marital rape a punishable offense in India. In my opinion, these issues have to be addressed before the government passes a legislation.

1. Overhaul in the patriarchal mindset

In India, when a man marries a woman, the attitude is that he has the power to control her every move. It is a given that he would decide where she will go, whom she will meet, whether she will work or stay at home and also when it comes to a conjugal relationship the fact that she has the right to say no does not even occur to the Indian male psyche. The question of consensus to sex in a marriage does not arise.

So in this case, how do you explain marital rape to Indian men or for that matter even Indian women who have accepted the socio-psychological conditioning that the female body belongs to the husband? Even if it is abused violently, it is often accepted because it is sanctioned by a marriage. And this attitude cuts across class, caste and educational background.

If we have to drive home the point that marital rape is a punishable offense, we will have to create a generation of men and women who would realize that there is nothing “normal” about a husband forcing himself on his wife. Like wife battering is often accepted as “it just happens if you make your husband angry,” marital rape is also accepted. Even if women muster the courage to talk about being beaten up by the husbands they often feel shy to talk about all that’s happening in bed.

2. Psychological issues

Award-winning director late Rituparno Ghosh in his film Dahan showed why nice and even sensitive men end up indulging in marital rape. The protagonist of the film is molested by a gang of men while she is on her way back home after a shopping spree with her husband. While the husband becomes unconscious after a severe blow from one of the perpetrators, a lady nearby saves his wife.

A still from the Indian movie, Dahan.
A still from the Indian movie, Dahan.

When people start talking about this lady’s heroic feat and start making insulting remarks about the incident his ego is severely bruised and after an altercation with his wife he forces himself on her one night. A wife’s body is often looked at as a means of venting frustration. In that case, they don’t realize that what they are doing is actually marital rape, a punishable offense in most countries in the world.

3. Martyrs of marriage

Passed by Indian Parliament in 1983, Indian Penal Code 498A is a criminal law (not a civil law) which is defined as follows:

“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offense is Cognizable, non-compoundable and non-bailable.”

This section was introduced to help women suffering from domestic violence. This section has provided cover from cruelty to thousands of women in India. But this section has been misused often to harass husbands and their families and it’s a vicious tool for blackmail. So much so that Section 498A has been regarded as a means of legal terrorism because innocent elderly people often land up in jail and lose their social standing. After being accused under Section 498A, men lose their jobs and many men have been driven to suicide.

(Refer to my blog on this issue)

In this perspective, if marital rape is accepted as a criminal offense there is a possibility of the law being misused. Gender rights activists cannot fight for marital rape laws if Section 498A continues to be used for legal terrorism. This practice has to be curbed first before the legal issues about marital rape are taken up. Because the two issues are interconnected care has to be taken to ensure that marital rape laws are not abused in the same way.

4. Social stigma

Indian society has progressed in leaps and bounds but the word “rape” still does strange things to people. Victims of domestic violence survive because being battered is ironically still acceptable. But how will the Indian society react if a wife brings rape charges against her husband? Because rape victims in India are often horribly ostracized there is reason to worry about the future of married women taking legal help for marital rape.

Because of a lack of shelter homes for women and often a lack of economic independence, women continue to be in abusive marriages because their families back home often do not support their decision to leave their husbands. Those who are fortunate are accepted by their families but what chances would a marital rape victim have of going back to her family?

In my opinion, these are questions that need to be asked, debated and addressed before marital rape is made into a punishable offense. So in that case, parts of Maneka Gandhi’s statement might be correct in the Indian context but the way it has pronounced and left unexplained it sounds strangely regressive.

Amrita Mukherjee is a freelance journalist who writes on social issues in India with focus on women. She divides her time between Dubai and India and blogs at www.amritaspeaks.com

The opinions expressed in this column are the author’s own and do not necessarily reflect the view of Asia Times. 

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