Marital rape should be a crime

Feminists have long debated if man created God in his own image or the other way around because it is not a crime to rape a 15-year-old girl if she is your wife, nullifying the entire Child Marriage Restraint Act, 1978, which lays down 18 years for a girl to be married. Marriage, sex and rape have always been seen through male eyes with 1 in 5 husbands admitting to marital rape in India, making this country one of the grossest violators of women’s rights in the world.

A husband can legally rape his wife if she is 15 years old because marriage is a sacrament in India and women are illiterate and poor, justifying their being raped, despite Prime Minister Narendra Modi’s so-called pitch for women’s rights. The preamble of the Constitution states India is a secular country and so all laws should be gender-and- religion-neutral, with the welfare of citizens at its core. But, the BJP’s version of secularism negates this.

Section 376 of the Indian Penal Code is self-contradictory because its sixth explanation says coitus with a woman under the age of 18 is still rape with or without her consent while the second exception to the same section states that if a wife is 15 years of age, forced intercourse with the husband is not rape, although she is a minor.

This brutal self-contradiction of making a husband immune to raping his 15-year-old minor wife violates international human rights apart from the Child Marriage Restraint Act, 1978, illustrating the dictum that any fool can make a rule, and any fool will mind it, according to Henry David Thoreau.

The solution is equally simple. The 24 words contained in the second exception to Section 375 should be removed by amending it during a single session of Parliament and substituted by stating that if a husband forces himself on a wife, coupled with assault, it will amount to rape.

To implement it, it would be mandatory for a wife to depose before a magistrate in person and during in camera proceedings after being questioned if she wants to lodge a complaint of rape against her husband and if she understands the consequences on her marriage. If she subsequently retracts, she can be jailed for perjury.

The BJP has stated marital rape is anathema to Indian culture, equating our women with those in Ethiopia, Pakistan, Afghanistan and Saudi Arabia while ignoring that it is a criminal offence in 52 countries, including the US, Australia, New Zealand, Canada, Israel, France, Sweden, Denmark, Norway, Russia, Poland and Czechoslovakia.

These BJP MPs are under the delusion that Indian women have more in common with next door Pakistan and Afghanistan, where men treat women as chattels, rather than with their sisters in the West, where women have a right over their own sexuality.

Rape in any form destroys a woman’s psyche because of the outdated concept of penile/vaginal penetration. Patriarchal law-makers in India assert marital rape is not a crime which is why the 172nd Law Commission of India has not recommended it be made a criminal offence while the J.S Verma committee has recommended the opposite.

 The Indian Government’s counter to making marital rape a criminal offence is that a wife can lodge a complaint under Section 498-A, or sections 377m (unnatural sex), 509 (word, gesture or act which outrages the modesty of women) or under the Domestic Violence Act, deliberately obfuscating the fact that these laws are not rape-specific but deal with other forms of torture.

And so 75 % of women have to accept rape within marriage or opt for divorce as a solution. Most “put up with it” for the sake of family honour. This is where the law comes in. Rape was recognized by Thomas Babington Macaulay when he codified the Indian Penal Code in 1860 by introducing section 376 which uses the words “with or without consent” provided the consent has been obtained by fraud or putting a woman in fear of death.

But Macaulay’s very definition of rape in section 375 of the IPC is obsolete because in 2005, 6787 cases were recorded of women murdered by their husbands or their husbands’ families in sex-related crimes. The union of one man with one woman to the exclusion of all others is the Christian concept of marriage where the idea of rape within marriage was never envisaged.

More than 150 years later, it is this age-old Christian concept which has ensured that marital rape is not an offence despite amendments, law commissions and new legislations. Hence, legislations have been either non-existent or totally obscure with everything left to the subjective interpretation of the courts. In Hinduism too, marriage is a sacrament but the Vedas and Upanishads are silent on the concept of marital rape.

The Justice JS Verma Committee has rightly recommended that marital rape should be made a criminal offence so that India stands alongside the developed nations in upholding women’s rights, not merely mouthing empty platitudes.

Dr Olav Albuquerque was Senior Associate lawyer in Brus Chambers, Singhania &Co., K. Asher & Co., all solicitor firms in Mumbai and also a senior associate in Al Alawi & Co., an international law firm in Muscat, Sulanate of Oman.

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