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SHOULD INDIA CRIMINALISE MARITAL RAPE ?

Updated: Dec 17, 2021



EVENT DATE : 9 NOVEMBER


Does the sanctity of marriage brush off the ethical concerns of consent? Is the institution of marriage sacrosanct in providing impunity to the violative husband? How do we ensure the greatest good through the generalized framework of law? Are there ways to avert the misuse of law? And can ‘Indian culture’ be evoked in this regard?


Rolling out these guiding questions, the moderator, Debangana Chatterjee opened the floor, inviting the first speaker, Dr. Kota Neelima, to state her thoughts.


Kota Neelima: I will begin with a question which I think is at the heart of the issue- will it make the men in the country unhappy in this country if marital rape is criminalized? The fact that we are still debating this, gives us an idea of the kind of country we live in. It’s up to the women to decide the kind of politics, government and policies they’d like to support. I believe there should have been a big movement to repeal this exception to the law. Doesn’t Section 375, which provides the exception to marital rape, violate both article 14( equality before law), as well as article 21( right to liberty)? According to UNICEF, 47 percent of marriages are child marriage, what little change we’d made, has been reversed by the pandemic. The girls are the first to get affected whenever such a crisis hits. There is no exception to rape- rape is rape.


Anila Singh: We are sitting in the 75th year of our independence, and we are sitting and still debating on this topic, is this the destiny of Indian women? Women are still struggling and fighting the patriarchal mindset. Should marital rape be criminalized? I will say yes in an instant. Bharat is known for a culture of giving women an equal status. But in today’s date, whether we talk about our rights in the parliament, the workspace, anywhere, we have to keep on fighting for representation so that it becomes easy to criminalise marital rape or forced sex in marriage. Be it any ruling government, or the judiciary, the majority is of men. For them, it is about the honour of the family, reflective of misogyny and the patriarchal mindset. But I also have to say, that in India, marriage is not a contract. There are many steps we have to take before criminalizing marital rape. For instance, Uniform Civil Code, so that everyone can get this right.


Anjana Sinha: I would like to explain this from a human rights perspective. The definition of rape is universal. As a law enforcement practitioner, let me tell you a lot of men have also been subjected to rape. Be it a man or a woman, nobody can be subjected to coercion of any kind, be it in any kind of framework. Every citizen should have the right outside as well as within marriage to say no to sex. Thus, marital rape definitely needs to be criminalized.


Priyanka Chaturvedi: Married women have no way to address this issue once they enter the marriage. Women are owned and treated like property. I refuse to look at this from a gender-neutral perspective, because the odds are skewed against women in many regards. I am shocked by some of the judges’ remarks when it comes to forced sex. On the other hand, the Kerala HC, has stated that women own their agency. A no is a no, and people in this country need to understand that. The judiciary certainly remains to divided on the matter. Why is it that women are held at a higher pedestal to prove that they are committed to a marriage? This is not about commitment, but is more about agency, self-respect, and dignity. As a progressive, democratic society, with almost 50 percent of the populace consisting of women- we need to hear our women.


Debangana Chatterjee : Where do you think the Indian society stands on this issue? Don’t you think we as a society encourage the silencing of women?


Kota Neelima: We need to understand that women are invisible in this country. There is such a thing known as male privilege. I am just coming back from a village in Telangana, where I was doing some research. Girls after the pandemic are getting married, or they are forced out of education. Or they are beings shifted from private to government schools because the costs are lesser. This is the state of the economy. I just give you this example because whenever a crisis hits a nation, society or any family, the first victim is the woman. Women in power have also chosen silence, and this serves patriarchy well. My submission is that you’ve got to reflect on the crisis, and how it affects the weakest of the gender.


Priyanka Chaturvedi: I have said this on many occasions, unfortunately, women haven’t been speaking in a collective voice. What is also equally important is that women shouldn’t be the only ones who should be flag bearers, we should also co-opt men to be speaking up. The private member’s bill on marital rape was introduced by Dr. Shashi Tharoor. Unfortunately, across political party lines it found zero support. Moreover, till women speak in a collective voice, we are not going to be seeing more changes.


Debangana Chatterjee: It is often very difficult to prove rape was committed in such an intimate relationship. What difficulties do law enforcement officers face when it comes to handling marital rape? To follow up further, do you think a such a legislation, if passed could create further complexities for the enforcement agencies who are investigating such cases? Does the domestic violence framework suffice to address marital rape?


Anjana Sinha: We do get a lot of complaints of marital rape and deal with it through the legislative framework of domestic violence. However, Having said that, let me tell you one thing as a law enforcement practitioner for 32 years, any law in our country gets abused. There is a class interpretation that I would bring in, that those who have the administrative and economic clout, are able to abuse law at every level. And those who are actual victims and do not have economic clout are not able to exercise their rights within the given framework of the law, criminal justice system and the courts. What I have encountered many times is seeing my cook coming with a blue eye, which is because the husband came home drunk, and he wanted sex and she was bullied into submission. I am sure all the women here can empathise with such cases. Do think that is acceptable? But she is not empowered enough to go to the cops, get the complaints registered and ask for redressal. It is about the social and economic category that you are coming from.


Priyanka Chaturvedi: There is marital rape, which we are denying. When we know there’s a massive divide in terms of access to legal recourse, then perhaps it’s time for reforms to come into place. Let’s have all the stakeholders come into this.


Debangana Chatterjee: In recent times, lot of judicial rulings have is when marriage is treated as a panacea to marital rape, and the victim is told to marry to their perpetrator. Judiciary is the extension of our culture.


Kota Neelima: We are circling this issue instead of addressing it. The stereotypes of portraying women as a property, as someone who’s dependent on men, is pervasive today. The law is male, the parliament is male, and the Constitution is male in this country. The only way we can make change is by fighting for our rights.


Anila Singh: The parliament is indeed male dominated. I think in near future we will see the criminalization of marital rape.


Anjana Sinha: To me it’s a shocking proposition to be made. Genuine victims of rape, which in itself is a very violent and macabre act- for them to consider living with that man or being married to that man, and being to emotionally resonate with a man like that is possible.


Priyanka Chaturvedi: Why shouldn’t we think politics from a point of sensitivity? Women leaders have shown the way for this around the world. I would like to see more gender- inclusive space and it will come when our national parties bring more female participation.


Debangana Chatterjee: I’d request the panelists to present their concluding remarks.


Kota Neelima: The moment we see women voting on their issues, we will see change. Can we see a bill in the next parliament session on this issue?


Anjana Sinha: We really need a public policy debate involving all stakeholders and really churn the issue. I hope we take this conversation into our homes and keep talking about it.


Anila Singh: Marriage is about two people coming together, so a woman shouldn’t have to lose her individuality, she has her own identity. I remember a couple of lines of Faiz Ahmed Faiz sahaab- “Bol ki lab āzād haiñ tere, bol zabāñ ab tak terī hai, terā sutvāñ jism hai terā, bol ki jaañ ab tak terī hai. Kudos to women power, and if we are together, we can definitely fight this patriarchal mindset, many more changes are required, and we are going to bring those changes.


Priyanka Chaturvedi: The conversation will continue if women choose to have a collective voice. Every female politician should make it a point that in every session they raise important issues pertaining to women, whether it is about climate mitigation, gender pay gap, women are currently at the losing end. We need to rise about our differences and talk about it.


All the panelists agreed that there is a need to keep the conversation rolling to understand the intricacies of this sensitive issue, and it is such dialogues that can in turn augment social change.








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