The exemption of marital rape from the new ordinance against sexual assault divides women into parallel provinces in the matter of consent and entrenches retrograde assumptions about sexuality

The three wise jurists of the Justice J.S. Verma Committee have finally given us a report that is amazingly compassionate, perceptive and infused with a holistic understanding of our society and its treatment of women. It’s heartening that the government has considered the report with the seriousness it deserves and quickly promulgated an ordinance supporting most of its suggestions on amending the laws relating to sexual assaults on women. However, the Ordinance excludes one important suggestion of the committee — bringing the issue of marital rape (by deleting Section 376A of the Indian Penal Code) within the ambit of the laws to be amended. One hopes that when Parliament finally takes up the matter to alter obsolete or irrelevant portions of the IPC (1860), the Code of Criminal Procedure, 1973 (CrPc), the Indian Evidence Act (1872) and Armed Forces (Special Powers) Act (1958) to create more effective laws against assault and rape, this anomaly will be addressed.

Traditional perception vs. law

True, despite its wide prevalence, marital rape remains notoriously difficult to define. Minimally, in common perception, it is deemed to denote a forced, non-consensual act of intercourse between a legally wedded couple where the man is charged with violating his wife’s fundamental right over her body and human dignity. But as Honoré, the 20th century British legal scholar and philosopher, has said, negotiations for sex within the bedroom are not carried out like those for the rent of a house. Men and women will proceed by touching, feeling, fumbling, by signs and words which are generally not in the form of a Roman stipulation. And so even if rape occurs, as an act of sex between a lawfully wedded couple, chances are that it may not be regarded as a crime in a court of law.

This is where the traditional perception of a woman to be the property of her husband, thwarts natural laws of justice. Ironically, Indian husbands seldom treat their wives, in law or in life, with the same care and solicitude with which they treat other forms of property. For many wives to be property in the real sense might be an improvement. Given this mindset and because they are non-material, claims of loss of or infringement upon her essential human dignity by the wife mostly appear unreal and incomprehensible not just to society but also to lawmakers and enforcers.

At home, at police stations and in courts, everyone wants to know not why so many wives tolerate rape within marriage but why some of them may choose to challenge it legally. One of Amitabh Bachchan’s popular advertisements expresses the popular view: “Ghar ki baat ghar mein hee rhey to achha.”

What happens inside a house should remain within its four walls is a common perception arising out of the definition of archetypal male behaviour, that acceptable sex between husband and wife can and will entail a lot of force. The ancient Vedic verses chanted on behalf of the husband during the Saptpadi promise the wife that her man shall never recourse to excess (Natikamey) even in matters of sex. This is interpreted as making a woman’s consent to be her weapon of control. But in actual terms, this model does not locate the woman in a situation or environ where she can seize control or voice dissent, without immediately facing disparate consequences of refusal. The reason that this power imbalance is seldom, if ever, debated is that actual consent or non-consent, far less actual desire, are comparatively irrelevant once a woman leaves her natal home to join the man’s family.

Cultural and legal definitions

At the time of marriage, sexuality (resulting in fertility) still remains central to society’s accepted definition of a female, and since the culturally and legally acceptable definition of sex vis-à-vis the man entails aggression as a natural part of male behaviour, marital rape continues to be seen as indigenous, not exceptional. If some ambiguous cases of battery and assault during forced sex arrive before a court of law, one may be sure they would be referred, by the husband’s family, to jurists and to doctors as results of half-won arguments between a normally aroused man and a somewhat stubborn and frigid wife. Thus, where women see rape in intercourse, the law merely sees intercourse in marital rape. Thus have our marital homes become the bedrock upon which rests the entire spatial framework that decrees permanent deference of the wife to her husband’s will in all matters including sex. Women of all ages here are allowed interaction only within a clearly specified area, with specific members. These categories clearly indicate to men who they can access for sex, and who is taboo. But there is no deference of men to women in any of these categories.

It is because of such divisions and silenced female dissent that our homes and streets are milling with males who assume their sexual predatory role as normal to their gender, and where many of them will even break taboos against incest with impunity on grounds that this is what they desire. The exemption of marital rape from the amended laws on rape, will continue to strengthen the retrograde assumptions about male/female sexuality that result in all kinds of assaults on women. And courts will continue to look for even greater atrocities than usual, in order to undermine the usual assumption that if force and assault were used, it was because the woman asked for it.

The laws against rape must not be allowed to divide women into parallel provinces to determine the true nature of their consent or resistance. At present, the perception is that virtuous women, like very young girls, are unconsenting, virginal and rapeable. Unvirtuous women, like wives and sex workers, are considered perpetually consenting and unrapeable. The vulnerability very young girls share with boys, dissipates with time, but the vulnerability they share with women never goes away. As with protective labour laws, dividing and protecting only those deemed as most vulnerable to rape, may well become a device for not protecting every woman who needs it, such as sex workers and wives. Unless the root of this warped power structure is addressed, abused girls and women would remain unsafe even in the safe houses where the courts send them.

(Mrinal Pande is a veteran journalist and commentator.)