Marital Rape: Legal Tangles & Social Realities
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Category : LEGAL DESK
Author : Shayma S
However, while criminalization is a debate that seems far from settled at least in India, there are waves of change when it comes to the complex understanding of consent in marriage. British Imam Mohammad Hammad who goes by @ustadhhammad_ on his popular Instagram page, popular for his workshops on intimacy and mental health spoke eloquently about the misconstrued hadith of ‘angels cursing women’ who refuse to respond to their husband’s sexual advances.

First published in Radiance Viewsweekly

Marital rape or spousal rape refers to sexual violence or intercourse without consent within a marriage. Under the IPC, marital rape is exempted from Section 375 which criminalizes rape. While the Justice Verma Committee recommended removing this exception, the Central Government has remained opposed to any such amendment, citing parliamentary standing committee reports as well as the 172nd report of the Law Commission on the subject. The current legal conditions make it impossible for a married woman to accuse her husband of rape. The government has cited concerns of excessive interference in family laws and the possible misuse of such laws and consequently, the long-standing demand for the removal of this exception that has arisen from women’s rights and civil society groups has remained alive and unfulfilled.

It has recently found new life with a clutch of petitions in the Delhi High Court being heard by the two-judge bench of Justices Rajiv Shakhder and Hari Shankar. RIT Foundation, AIDWA and some victims of marital rape are the key petitioners in this case. While both the Supreme Court and multiple High Courts have, over the years, pointed to a possible reform in the law and the arbitrary legal nature of the exception, this is the first time that the issue appears to be heading towards some legal resolution in sight. Senior advocate Rebecca John has been the amicus curae, assisting the court in understanding the complex case. She has eloquently argued that the exception to Section 375 fundamentally creates an inequality between a married and unmarried woman, with a married woman being effectively barred by the law from seeking justice for sexual violence within the home by the said exception.

Dismal social realities

The recent National Health & Family Survey 5 (2021) data reveals that 29.3% of “ever-married women aged 18-49 have ever faced spousal violence” (where spousal is defined as sexual or physical) in India. It is also a well-known fact that most rapes in India occur at the hands of perpetrators that are known to the victim, including within the family itself (UN Women). Earlier NHFS data (2015-16) also showed that the average Indian woman is 17 times more likely to face sexual violence from her own husband than from others and 30.9% of crimes against women were committed by spouses or families. The statistics are damning; and while domestic violence and dowry laws have stemmed the tide to some extent, spousal sexual violence still remains a taboo spectre within Indian households, often treated as a ‘private’ matter or one that is seen as a fiction made up by women. A point to be crucially noted is that all of this is only the reported data; the mass level of underreporting due to stigma or fear means that this is merely the tip of the iceberg.

The recent case has also sparked a backlash to the possible criminalization of marital rape from right wing social media accounts, particularly men who have claimed that they would go on “#MarriageStrike” (a popular Twitter trend in January 2022) if the change were to be implemented. This has been spurred by a discourse that argues that women often misuse laws made for their protection in their favour, such as dowry, rape, domestic violence and maintenance laws. Backed by little data and much misinformation, these arguments posit a worldview where Indian women, otherwise known to be subject to a great deal of everyday violence, are weaponizing existing laws as well as creating new ones in their favour to victimise men. However, as Senior Advocate Rebecca John has argued, it can be observed the demand to remove the exception does not create a new law but only removes the unequal treatment of married and unmarried women in law when it comes to the question of rape.
We spoke to some lawyers, religious scholars, women activists and marriage counsellors to find out their views on the prevalence of marital rape as well as its religious and legal dimensions.

On finding a standard of equality

The legal fraternity too has a diversity of views on the issue, even as most of them acknowledge that marital rape is a heinous crime and a reality. Some argue that the overt attention to the debate of ‘misuse of laws’ is unwarranted since in theory, all laws can be misused, and this does not form a legal ground in any case to oppose them. Similar reasoning was given in the case of dowry or domestic violence laws but it is but obvious that vulnerable communities with different needs need special provisions and protections; and there exists no concrete data to prove that women chronically misuse laws, while there is certainly hard data to prove that women do not have easy access to police stations, filing FIRs, or getting their voice heard.
It has been argued that sexual violence against the wife has already been covered under cruelty and is one of the grounds for divorce, and therefore, women are merely rushing to create new laws with no grounds. But as Somaya Gupta, a Delhi-based lawyer points out that while sexual abuse under domestic violence would cover a whole spectrum of activities that are sexual in nature that would harm the mental or physical well-being of a woman, ranging from unwanted sexual comments to making a woman do non-penetrative sexual acts without her consent, to even covering penetrative rape. She argues that a separate marital rape law is necessary for two reasons: because there are separate offences for separate activities (to give a basic example, someone who commits murder using a knife to stab the victim would be charged for murder along with causing ‘grievous hurt’). So while rape qualifies under sexual violence, specificity of offense is an important aspect of criminal law, which is why rape is a different provision than ‘offending the modesty of a woman.’ Rebecca John has argued to the similar effect in court, that while different provisions can complement each other, they are unique and not substitutes, additionally arguing that if the law courts had to decide between man’s ‘expectation’ to sex and a woman’s ‘right’ to bodily autonomy, it ought to be the latter that is upheld.

On ‘criminalization’

Firdouse Khan, a member of Forward Trust in Bangalore who has dealt with cases of marital rape at her counselling centre, finds that while the victims often term it as abuse rather than use the weighty term of ‘rape’, the social realities of trauma and abuse that such women face cannot be denied. She believes that women ought to have the right to go to court if they wish and seek remedy, and that social organizations must hold wide-level consultations to first understand the issue at the substantive level and include women in these consultations.

Opponents to criminalization and their reasons to oppose it can be broadly categorised into three: fearing misuse of laws, arguing that it would lead to the breakdown of family and that in marriage, there is inherent consent. The ‘inherent’ consent angle has been used by lawyers to argue that marriage inherently means that sexual relations are in-built or understood. However, the roots of the marital rape exception actually find another source in history and not this understanding of marriage – all the way back to Thomas Macaulay, someone who has undeniably left an imprint on what forms modern Indian law. Macaulay’s understanding of marriage & consent treated women as inherently subordinate in the relationship, equivalent to chattel. Some Islamic scholars who spoke to us suggested that if there was a breakdown of physical relations to the point that the wife sought to file a case of rape, it was better that she seeks divorce. Others were more dismissive of the possibility of even using the term ‘marital rape’, pointing towards the chasm between the social reality of brutal sexual violence and the linguistic discomfort in labelling any aspect of the ideal and sacred marital relationship as ‘rape, which is essentially an illegal act while the idea of nikah itself points to a legalisation of what would be otherwise illegal.

The recent National Health & Family Survey 5 (2021) data reveals that 29.3% of “ever-married women aged 18-49 have ever faced spousal violence” (where spousal is defined as sexual or physical) in India. It is also a well-known fact that most rapes in India occur at the hands of perpetrators that are known to the victim, including within the family itself (UN Women). Earlier NHFS data (2015-16) also showed that the average Indian woman is 17 times more likely to face sexual violence from her own husband than from others and 30.9% of crimes against women were committed by spouses or families.

But divorce is a civil remedy, not a crime and does not address the heinous nature of what rape entails, that is, total violation of a person’s body, dignity, agency self-worth and mental health. Gupta is also of the opinion, that while men can ‘expect’ sexual relations entering into a relationship, it cannot be turned into an entitlement (I deserve it and she must offer it), which further cannot be turned into immunity (which is what the law currently offers to men engaging in the act). The detractors of the proposed law immediately invoke the misuse, degree of punishment or impossibility of proof, but for Gupta, that is a far road ahead and it is more imperative to recognize that “when a particular act which is otherwise an offense gets exceptionalized and is granted immunity, it gives a sense of right and entitlement to men who are in a conjugal relationship with a woman.” There are other opponents of criminalization who are wary of state interference in family law and the criminalization of what they see as civil matters, as a Kerala-based lawyer, Ameen Hassan told us. However, supporters of law reform in this area point to the need for the courts in a welfare state to intervene for the rights of the most marginalized – such as women, historically oppressed communities or children, and the need for laws governing crime within the family sphere (such as child sexual abuse or dowry deaths) in a country deeply riddled by cultural and social biases that cannot go unchecked in the name of a ‘private family sphere’. And while some women may prefer to divorce without filing a rape or violence case, or access a qazi to seek arbitration, many others would like to have the right to go to a criminal court and recognize their experiences and give it a name – rape.
The Islamic perspective

There is a need for great sensitivity and critical understanding when it comes to the deeply traumatic experience of sexual violence and rape. While marriage in Islam comes with a great emphasis on the sexual relationship within the marital home, it places equal emphasis on mutual understanding, kindness and empathy towards the other partner. However, there are a variety of contesting opinions on marital rape itself, first on its definition and secondly, on criminalization. Raziul Islam Nadvi, Dept. of Islamic Society, Jamaat-e-Islami Hind has argued that while physical intimacy is emphasised in Islam, it ought to be done so in moderation, as is advised with all other good things – and that if one partner is unwilling, the other partner should exercise patience. In addition, the husband has the greater responsibility of patience, because the wife may be undergoing some unique physical experiences such as childbirth, menstrual pain, or even vaginismus, a condition that makes it difficult for women to engage in sexual intercourse due to immense pain. If additionally, the problems cannot be solved and there is total breakdown of physical relationships, either partner can seek divorce. S. Ameenul Hasan, marriage counsellor and life coach, believes that “[the] marriage institution is a package of rights and duties and protecting each other from social, emotional and economic harm… Sexual intercourse between husband and wife in marital relationship cannot be labelled as rape…If one partner is neurotic, psychotic, narcissist then Islam argues for counselling by experts and mediations by wise elders from the relatives of the spouse…In Islam husband and wife are not parties against each other rather they are part of each other…” It appears that the term marital rape itself projects an adversarial nature of marriage to the opponents of criminalization as well as an Islamic impossibility where rape is inherently an act outside of a legal marriage, while those in favour of recognizing it as a crime would argue that a ‘crime is a crime’, no matter the sphere of its incidence.

However, Firdouse Khan believes that there is a fundamental misunderstanding when marriage is treated as a carte blanche for consent or sexual availability, often justified through citing some ahadith about women making themselves available for sexual relations. But this ought to be understood in conjunction with the many sayings of the Prophet (saw) who repeatedly enjoined his followers not just to be kind to their wives, engage in adequate foreplay but also to ensure that their sexual needs were fulfilled in turn. While there are certainly ahadith that emphasise on the need to fulfil the partner’s sexual needs these apply to both men and women and in no way justify force, violence or cruelty. The families she has counselled often argue that women should have patience and submit to their husbands’ needs even if they are unwilling, but she argues that patience is a virtue advised for both parties and a kind and sensitive husband would need to exert his patience as well if the woman is unwilling for whatsoever reason and try to solve the issues that might underlie instead of forcing her.

However, while criminalization is a debate that seems far from settled at least in India, there are waves of change when it comes to the complex understanding of consent in marriage. British Imam Mohammad Hammad who goes by @ustadhhammad_ on his popular Instagram page, popular for his workshops on intimacy and mental health spoke eloquently about the misconstrued hadith of ‘angels cursing women’ who refuse to respond to their husband’s sexual advances. Scholars such as Hina Azam and Jonathan AC Brown have also argued, that while the modern concept of consent is different from the early Islamic world, women did take their husbands to courts for injury in sexual activity, and while ‘rape’ could not be applied in such cases, the idea of ‘harm’ and ‘zulm’ could be applied, such as the incidents of women seeking diya for perineal tearing in cases of forced sexual activity.

Interestingly, Muslim countries such as Tunisia, Turkey and Qatar have criminalized marital rape, while Malaysia has criminalized marital rape that causes bodily injury. It would be wise to carry out a study of these countries and find ways to offer support to Indian women instead of dismissing their concerns, many of whom do not have legal avenues to put an end to the violence they routinely endure. And to remember, even more acutely, that while laws and legal reform can offer some cure, the best way is to work on a society that does not thrive on intimate personal violence, one where men truly aspire to live up to the gentleness and empathy of the Prophet (saw) who was the best of men to his wives, as he was to humanity

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