On The Wrong Side Of History

"Section 375 of the IPC states that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."

The coronavirus lockdown has brought with it not only a health disaster and an economic dislocation, but a pressing social issue. With a surge in domestic violence during this pandemic, as reported by the National Commission for Women, is it bold to assume an augmentation of marital rape as well? 

In 2013, the government of India passed the Criminal Law (Amendment) Act (the Act) which broadened the definition of rape in the Indian Penal Code by amending section 326B to include ‘voluntarily throwing or attempting to throw acid,’ section 354B ‘sexual harassment, assault or use of criminal force to woman with intent to disrobe,’ section 354C ‘voyeurism,’ and section 354D ‘stalking.’ The act also increased punishment for rape from a maximum of one year to a maximum of three years with a fine.  Marital rape, however, continues to remain an exception. 

Specifically, the IPC considers marital rape to be a criminal offence only if the wife is less than fifteen years of age. However, considering that any marriage wherein the girl happens to be below eighteen years of age is illegal, the exception stated before is automatically discredited. As a result, men are allowed to violate their spouse’s right to bodily integrity without guilt, regret, shame or punishment. 

Why is this a problem? Besides the obvious obstruction to one’s body, marital rape can have a bigger economic impact than people may believe. Although India has experienced an economic boom and remains one of the world’s fastest-growing economies, the female labour force participation rate is alarmingly low.  According to The World Bank, the female labour force participation rate fell from 32% in 2005 to 21% in 2019, thereby implying that more than three out of four women over the age of fifteen are neither working nor actively searching for employment. One reason for this is the increasing number of women pursuing higher education, but the fact that over two out of three women in the prime working ages of 30-50 are not working is of grave concern. An article published by Livemint titled ‘India’s workforce is masculinising rapidly’ highlighted that a majority of women in their prime working-age are choosing not to work because they are “attending to domestic duties only.” Consequently, the consequence of this decline is slower economic growth (which we did, in fact, experience from the onset of 2019) and poor prospects for future generations.  Having more women in the workforce will increase the number of taxpayers, which in turn will add to the government’s revenue. This revenue can ensure a sustainable welfare state and can be spent on developmental projects. While this economic impact may seem to be quite obvious, India’s social norms and religious beliefs have halted women’s career growth. The obscured notion of what a respectable family in Indian society looks like, has hindered our path to correctly and completely criminalising marital rape. 

In response to the recommendations suggested by the Justice Verma report, Lok Sabha commented, ‘The Committee deliberated the amendments to section 375 of IPC including the issue of marital rape and observed that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.” Legalising marital rape violates Article 3 of The Universal Declaration of Human Rights (UDHR) - proclaimed by the UN General Assembly in 1948 as a common standard of achievements for all people of all nations – that specifically states that “Everyone has the right to life, liberty and security of person.” This decision also violates articles 14, 15 and 21 of the Indian constitution by snatching away a woman’s fundamental rights. Ergo, the reason we are denying women their most basic right is to simply protect our ancient, distorted ideal of a family system. 

This dates back to statements made by Sir Matthew Hale, C.J., in 17th Century England who said, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given herself in kind unto the husband, whom she cannot retract.” It’s vital to understand that this statement, on which our exception of marital rape is dependent, was made at a time when marriage was not one of equals. In recent times, both men and women have divided the workload and have come closer to taking equal responsibility. The statement, thus, cannot be blindly followed in today’s scenario.  

With recent strides made by the government of India, for example, the Section 377 verdict, it only makes sense for our leaders to continue re-evaluating age-old laws to fit our current social atmosphere. The coronavirus pandemic has left everyone quaking in their boots, especially women trapped with their abusers. The National Commission for Women (NCW) has reported a proliferation in domestic violence cases since the lockdown commenced- nearly double the number of registered complaints- and I see no light at the end of this tunnel. With domestic violence being a punishable offence, we have accepted that a man cannot physically harm his wife. However, what our society fails to notice is that there are different types of rape that leave different scars. 

Battering rape (involving physical violence in combination to sexual violence either during or after the episode) and obsessive/sadistic rape (involving torture and/or perverse sexual acts) can leave a woman with injuries like bruises, soreness, torn muscles, lacerations and black eyes, just like domestic violence can. Additionally, even force-only rape has an equally damaging impact on a woman. From anxiety to depression to eating disorders, rape causes long-lasting psychological effects. What’s worse about being raped by your husband than a stranger is the element of betrayal that the woman feels. Some marital rape survivors report PTSD and trauma even years after the violence and find it harder to establish trusting relationships in the future. These psychological and physical impacts bundled with uncertainty during these trying times can take a toll on women which is why this issue needs to be dealt with immediately. 

The NCW registered 587 domestic violence complaints between March 23 and April 16, this is a noteworthy rise from 396 complaints reported shortly before. What’s eye-opening is the fact that these numbers undermine the total number of cases. Considering that many women are unable to reach out for help for a crime that is punishable, imagine how suffocated women suffering from marital rape must feel.  With no law protecting them, no physical escape and no protection from harm, the virus has only worsened this atrocious offence.     

 It is important to focus on eradicating the virus and ensuring economic stabilisation, but should women’s suffering be put on the backseat? The injustice that happens inside private quarters cannot be kept private anymore. Criminalising marital rape adequately will not harm family values, it will, on the contrary, have the opposite effect. Healthy women make for fit employees who can help lift India out of this economic downturn. Healthy women make for loving wives and mothers who can ease tensions at home. Healthy women, more than anything else, should be the goal of our country, not the exception. 

Helen Stacy (Head of the Human Rights programme at Stanford University) stated in an interview that “human rights don’t exist. They’re an idea… They’re a hope for many. And a reality for some.” She also said, “one’s access to rights and violations of rights are a function of the accident of where one is born and whether you’re born a boy or girl.”

Do we wish to continue this deep-rooted discrimination and subservience of women? It was never okay to deny women their human rights and violate not only the UDHR but also our own Constitution. It was never okay to deny this right for arbitrary reasons. It was never okay to fool our own conscience and bring young women up with ambiguity. It was never okay, but it can change now. Especially now. It’s time the daughters of India stopped suffering in silence and gained the dignity they deserve. 

Since the entire world is self-reflecting during this time, shouldn’t our country also reconsider the rights being granted to women? Let’s not be on the wrong side of history any longer.