The Woman’s Question: Culture of India’s Marital Rape
Being a woman is a feeling of pride; we could be personal therapists for the broken, free daily house help, and/or personified versions of dignity and respect. There is a blatant objectification, submission and the absolute downright humiliating cycle of compartmentalisation in place. These are viewed from the rose-coloured lenses of what is commonly known as Patriarchy, or the domination of men and their ideas over the female gender, from the very decisions a woman can make to whether those decisions are even hers to make. Patriarchy has cut our wings so deep, that normalizing a victim’s trauma is the next easiest thing to do, and not just for society, but for that woman herself. How normal is it for her to see the catcalls coming, the involuntary action of pulling her dress below her knees or wearing a jacket to cover her shoulders even if it may be 30 boiling degrees outside? Or how it is in her second nature to go look for her husband in the dead of the night where he may be passed out drunk after a drinking session (probably as being habitual to his working conditions)? Or she might find him in jail where he may have been arrested for causing a ruckus or a scene? How many times does she probably wish to see him just out of her life on the road where she can finally get rid of him and her daily dose of torture? How normal has society made it that a man could legally force himself upon his wife for the procreation of human life in general? Why must we put the man on that pedestal, make him the sole creator and responsible for the continuation of humankind as we know it while throwing the woman completely under the bus where she has no other remedy but to bid her old life goodbye, mould herself to the whims and fancies of her husband, one she must ironically treat like God, and become a person that he can rape, maim and kill until she is nothing but a shell of her past self? Through this article, I would like to bring to attention India’s loopholes in both its understanding of the problem, and the law in place that worsens the problem.
LEGAL FRAMEWORK IN INDIA
The trajectories of patriarchy in the involvement of marital rape laws have been far from fruitful or helpful. Once or twice the country might show up with a discussion that shows ostensible signs of veering away from the conventional methods of India’s rape laws being intertwined so deeply with concepts of family and procreation, but at the end of the day, they’re always back to stage one where the woman is a child-bearer and the man is the one who put that child there, whether she wants it or not. This theory, this whole concept of male supremacy and the weakness of a female both physically and emotionally, is so mentally draining; women are emotional creatures who think irrationally, cannot drive because they just don’t know how to, cannot work in offices because they need to take leaves for maternity, cannot step out of the house because they need to be protected, cannot be happy because her sole purpose is to make everyone else happy. A woman lives for everyone but herself and this cannot be more evident than the days right after she takes the vows of a happy marriage and binds herself to someone else, someone who swears to protect her, to cherish her but that very night, her consent is irrelevant; she as a person is irrelevant. She is only a wife, a daughter-in-law, a sister-in-law. Her whole identity is her last name and she is now the human definition of the family’s respect.
Section 375 of the Indian Penal Code defines rape as “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman against her will, without her consent, through force or coercion, or when she is unable to give consent because of unsoundness of mind or intoxication, or with or without her consent if she is under the age of 16.” The exception to this rule, however, throws all the beauty of this law right back; it states “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” Simply put, these words refer to the law that clearly states that any forceful or non-consensual acts of sexual intercourse by a man upon a woman would be classified as rape and he would be punished for it, unless she was his wife, or she was his wife and less than 15. These simple words take away all the fight in a woman who is bruised, battered and traumatised, leaving her with no option but to surrender to her very own husband in the name of performing her marital duties.
The Verma Committee was a three-member panel that sought to recommend amendments in the rape laws of the country following the brutal gang-rape case of December 2013. The committee in its report said, “relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity and the fact that the accused and the victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape.”
The only legal remedy available to women in India against marital abuse by their spouses is through the Protection of Women Against Domestic Violence Act of 2005 that was introduced to protect women in domestic spheres from violence. However, the victim can only seek redressal for grounds of domestic violence (which includes the physical and mental abuse and trauma for beating) or prove the various grounds of cruelty as mentioned under the Divorce Laws. Either way, the end result is Judicial Separation which does not hold the man liable for the crime committed as there is no “crime” in the first place.
THEORIES OF MARITAL RAPE
A major factor in the existence of patriarchy is the need to control. Society has always been against deviancy from normative means of living life. With almost no legal resources to back them up, most women have complained about marital rape becoming a part of their daily life; an act they don’t consider sexual assault anymore. More so, women are conditioned to “take it” as they are “supposed to” and “not complain”. This breeding of internalised misogyny has unsurprisingly stemmed from the victim’s close circle, like in-laws and friends, sometimes even their own mothers. This need for control over a woman’s body naturally extended to the control being entirely claimed by a husband because of the notion that she was his “property” and he owned her. Three theories are responsible for holding the man “not guilty” in cases of marital rape. One, the notion of implied consent as put forth by Sir William Hale; two, the property theory; and three, the Unities of Person theory. Quite easily, one can understand that the Property Theory is all about treating the woman as property, an object, a commodity of the husband, a trophy in his hall of fame. The aim was to bring about a certain set of harmony in the marriage, on the grounds that sexual intercourse between a husband and his wife would never amount to rape as he was simply “using his property”. The Unities of Person theory is, funnily enough, about the concept that after marriage, the husband and wife are one, and not two different breathing humans. Using this logic, people claimed that the woman was now part of the man and the man could obviously not rape his own self.
The Implied Consent by Sir William Hale is a different story altogether. The theory claims that marriage is the woman’s irrevocable consent to each and every sexual relation with her husband. In the seventeenth century, Sir Matthew Hale made the comment “the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and the contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” Hence, marriage to a partner for a woman is basically a contract where her consent for sexual relations is implied, if not expressed and is absolutely irrevocable.
The most common argument for the absence of rape laws is the notion that public law cannot enter the confines of the bedroom (or “private sphere”). The public law of crime must keep its eyes trained away from the helpless screams of the woman and can do nothing but lay its hand on the closed doors of the private sphere, unable to penetrate into someone’s ‘personal matters’. This societal concept is downright repulsive. It allows for the law to stray away from the basic human rights granted to humans solely for the fact that they are humans; a human’s intimate relationship with her rapist can be the excuse for the said rapist to commit psychological and physical harm to the human, leaving her voice broken and battered like the rest of her body. Lady Justice cannot see for it helps her to remain neutral and procure justice in a non-arbitrary fashion; but why does she also have her ears covered against the screams of agony of a thousand women who need her? Ironically, the imagery of Justice is a woman; the fierceness of war is a goddess Kali (an Indian goddess, mostly used as a depiction of a woman’s fury or rage); the imagery of financial wealth and infinite knowledge is a woman (the Indian goddess called Laxmi, the word also means wealth in itself); and yet her human counterparts are treated as the property of a man, to worship him like a god, find no faults in his behaviour, and take his degradation and humiliation of her dignity and identity as his ‘love’ and ‘care’ for her, as the vows he agreed to cherish while taking his vows in the presence of something holy. This monstrosity, this culture of endurance towards pain, humiliation and submission to make a marriage last, is the very reason why that woman dies on the inside.
