In the ongoing debate about marital rape, there are several reasons being quoted for why it should not be criminalised, or why criminalising marital rape is not the answer. How do you prove marital rape? How do you prevent misuse? How do you get people to use it in the first place? And of course, the ever present “isn’t marriage consent?” While some of these questions do merit serious thought while implementing the law, none of them is an adequate reason to deny the need for a law.
One of the arguments from the “yes, but no” camp is that marital rape needs a civil remedy, not criminal recourse. A recent post on Vagabomb makes the case saying, “In a country where accessing the criminal justice system is an obstacle course which most people would not like to go through, most of these women believe that filing a complaint against their husband would affect them adversely. If the husband is arrested, the primary source of income into the household would stop. If she is staying with her in-laws, she would be beaten up by them and invariably thrown out of her marital home.”
This is the reality of India, and no one can deny it. It’s a sad state of affairs when the ‘punishment’ for complaining about sexual violence is more violence. It illustrates that violence and empowerment are two sides of the same coin, and we must address one to address the other. But as we acknowledge this truth, we must ask ourselves: is it the job of Indian law to enable this cycle of violence for eternity? Should the legal system continue to protect patriarchal interests, or should it stand up for women who are facing sexual violence but have no way to get justice? Should the justice system address the question of violence, or should it simply leave it to the ‘family structure’ to deal with it?
I’m not claiming it is easy to access the criminal justice system, or that the system itself works perfectly. But that is a systemic problem that we need to address simultaneously, and not suspend legislation for crimes until the system becomes perfect. Meanwhile, women who do not want to file a criminal case against their husbands do have access to the Domestic Violence Act, and removing the exception to marital rape will not affect that.
The Vagabomb piece also brings up a very problematic argument. “In a country like India, where sex is such a taboo, not just in rural India but in urban India as well, for most women, the only way for them to access ‘legitimate’ sex is through marriage,” the author says, quoting “access to physical and emotional intimacy” in marriage as a reason for women’s preference for ‘informal’ interventions.
Well, not only is that argument insulting to women, not only does it infantilize Indian women to a large extent, it also ‘legitimises’ marital rape as the price women are willing to pay for intimacy. This is the exact mind-set law, media and civil society should question, not reinforce. Removing the exception to marital rape in India’s criminal law will not magically change the way people think -- but it will send a message that violence will not be tolerated in the name of marriage. It will set us on the path to social change, to a world where ‘sanctity of marriage’ does not trump an individual’s dignity, autonomy, health, and indeed her life.