Marital Rape Law – Reflect Before You Act 

She was holding a seven-month-old baby boy in her hand. He had allergy on his face but his smile will remain in my heart forever. I was shooting for my film at one of the women cells in Gurgaon where I met her. I asked her what happened. "Ma'am I have been coming here since last eight months, but they have done nothing for me. My husband doesn't want to take care of my two kids and me. He used to beat me up every day. One day he smashed my head on the wall. I was bleeding. I ran away and came back to my mother's place. We are very poor. I don't have money to feed my kids or myself. I am at the mercy of my parents," she said, tears rolling down her eyes. Have you filed any case? I asked her. "Yes. Police took my FIR. He was arrested and put behind bars. But then he got bail after some time and has stopped communicating after that. There's a case for maintenance in the court too, but nothing is happening," she said.

Shweta (name changed) is a young mother, uneducated and unemployed. She is from a family of pot makers who earn a bare minimum and stay in Jhuggis (make shift home). She has three younger sisters who are yet to get married. Shweta’s parents did whatever the police advised them to do. While I spoke to her, I realised that the women officials at the women cell were least interested in hearing her plight. I asked her to go to the National Commission for Women, and she asked me "What is that?"

Shweta isn't alone. Many women like her have all the laws made for them, many institutions running for them, but get little relief either by the state or the laws. While these women get quoted as a number under various research studies, they don't get the benefit of the laws made for them.

Aditya (name changed) has been doing the rounds of the police station for the last six months. He and his wife had a love marriage, and everything was beautiful until his wife's parents started overly interfering in their life. He felt like a puppet, being manipulated, emotionally blackmailed and abused too for not being the way they wanted him to be. He tolerated all of it for a long time - his own relationship with his parents suffered, he became depressed, felt suicidal, couldn't concentrate on his job and felt helpless. He finally decided that he wouldn't take it anymore and sought separation. His wife and her family gifted him with Dowry, Domestic Violence, Unnatural Sex, Criminal Breach of trust and many more cases immediately thereafter. In a marriage where he went all out to keep his wife happy, he was accused of committing crimes that he couldn't even think of, let alone doing. He has been presented with two options - pay a hefty amount and settle the cases or face the music for as long as he doesn't pay. No one wants to hear his side of the story, and he has been labelled a criminal though he was the one abused in the marriage.

Shweta and Aditya are two sides of the same coin when it comes to laws made for married women to protect them from marital abuse in India. While women like Shweta run helter-skelter for relief, men like Aditya run to prove their innocence. Both are sufferers, and if we want to bring any new law under these circumstances, it would be highly unfair if we look only at Shweta and not Aditya. Even if we look only at Shweta we need to introspect ground realities for Shweta rather than just saying "we need a law" because, if criminal prosecution of the husband were the only answer, Shweta would have got a response a long time ago!

That some women are coerced into sex against their will and consent inside of marriage in India and also subjected to violence for it is an undeniable fact. When a very high percentage of marriages in India are arranged, we are of course talking about sexual intimacy between two people who hardly know each other. We are also talking about two people who have been brought together by society to fulfil each other's desires, necessities and needs. Sex is a basic human need for both men and women and to deny that without reasonable grounds has been made a ground for divorce under Indian Laws governing marriage.

Sexual Violence or any kind of violence on a woman in a domestic relationship has been made an offence under the Domestic Violence Act. Cruelty of any nature, whether mental or physical that can cause danger to life, limb or health of a married woman is a crime under section 498A of the Indian Penal Code (IPC), punishable with rigorous imprisonment for three years and also a fine. Not only the husband but his entire family can also be made an accused in these cases. A woman separated from her husband can prosecute him for rape if he forces himself upon her under existing rape laws. So it is wrong to say that women in India have no protection from sexual abuse within marriage, as claimed by those who are spearheading a campaign for bringing a law for marital rape in India.

While passing a law for marital rape would mean nothing more than removing an exception from existing rape laws, that do not allow a husband to be prosecuted for the offence if the wife is above 18 years of age (Supreme Court of India has recently criminalised sex with wife below 18 years of age), its implementation on ground is a complicated reality only feminists can ignore. I say that because of the nature of the cases coming to our courts today where the wife cites any action done or not done by the husband as cruelty with the husband having to face criminal charges for years along with his family. Most of these cases are filed on the basis of the testimony of the wife and her parents alone, without any evidence substantiating the physical or mental abuse alleged, whatsoever. There is very little reprieve available if the husband is falsely accused. It is easy to say that the misuse of law is no ground to not have a law but bringing a law that will have no checks and balances against its misuse will be disastrous. Under amended rape laws, a woman needs no evidence to initiate a case against a man. Her testimony is evidence in itself, and it solely can lead to conviction. It is the man who has to prove that sex happened with consent. Barring cases where there is extreme violence along with sexual assault, if the law is passed, how would courts decide if there was consent between husband and wife or not - her words vs his words?

Take this into account – as per the National Crime Records Bureau, of the 33,000 rape cases reported in 2015, over 7700 were rape cases filed on husbands or live-in partners. Recently there have been cases where women have filed “rape on false promise of marriage” cases on men after 15 or 20 or even 32 years. In such cases, consent becomes a factor of an alleged promise whether made or not. Whatever be the truth of the matter, the man is arrested immediately under rape charges and languishes in jail for months or years without bail. Within few years of rape laws getting amended through the criminal law amendment bill in 2013, petitions have been filed in various courts against the misuse of rape laws. Madhu Kishwar, a renowned social activist has filed a public interest litigation in the Delhi High Court regarding the same, questioning the constitutional validity of the amendments which have made the law draconian and easy to abuse.

A twenty-year-old girl has petitioned the Mumbai High Court, asking for guidelines to ensure that people are not booked under false charges of rape after a love affair turns sour. Even the police in many states have acknowledged the presence of professional gangs who are using rape laws to extort money after threatening and intimidating people with false rape cases.

Even before marital rape is recognised, instances of the misuse of rape laws in matrimonial disputes are coming to the fore. In June 2016, Deputy Inspector General of Police of Meerut Laxmi Singh, issued a circular to the police, cautioning them before adding IPC 376 (rape) or IPC 377 (Unnatural Sex) to cases registered under 498A because such cases were increasing day by day after guidelines were issued by the Supreme Court prohibiting mechanical arrests under 498A.

Inspector General Ashutosh Pandey made a similar observation in December 2014, barely six months after the Arnesh Kumar judgment in which those guidelines were issued. Since the courts have curtailed immediate arrest under dowry laws, these sections are increasingly being used to pressurise the husband’s family for settlement. In July 2015, a Delhi Court acquitted several family members of a man after his wife who filed gang-rape case against all of them had turned hostile saying there was only a verbal altercation between them and her lawyer had filed the case without her consent. Needless to say there was no action against the lawyer or the woman for turning hostile.

Such reports are coming from every part of the country. Rape cases on the father-in-law or the brother-in-law, molestation cases on husbands, husband’s brothers – unsubstantiated allegations are being added to matrimonial cases to pressurise the husband’s family for compromise. There are several cases in which husbands or their family members have committed suicide owing to the pressure.

Here is a real conversation between a lawyer and her client that I have showcased in my documentary film ‘Martyrs of Marriage’ on the misuse of dowry laws, where the woman is being advised to consider herself as an actress and rehearse her role as a victim of dowry demand and molestation by her father-in-law. This leaves little to the imagination on how easy it is to abuse these laws.

Coming to the perspective of consent within marriage, I remember a case from Mumbai where a woman killed her partner in a fit of rage because he did not want to have sex. A divorce petition filed by a husband from Gurgaon went viral on social media and sadly became a butt of jokes as well because he had described how his wife was a sex maniac and would abuse him if he did not fulfil her sexual desires.

As women organisations asking for provisions to be passed, argue on the basis of consent and the recognition of the offence in most countries, it must also be kept in mind that most of these countries have a gender neutral rape law and hence a gender-neutral marital rape law. Just the way a wife is not the property of the husband and has right to say ;no', a husband also has right to say 'no' to sex if he doesn’t want it. If he is coerced without his consent, that should constitute rape too. There are states in the United States which have very specific conditions for a complaint of marital rape. For example, in South Carolina, men or women raped by a spouse have just 30 days to report the incident to the authorities. For the rape to count, it must have involved “the use or the threat to use a weapon or physical violence of a high and aggravated nature.”

The way demands are being made in India, I see no exceptions being introduced if marital rape is recognised. One must also keep in mind that, the judge can no longer have any discretion over the quantum of sentence, which means, if a husband is convicted merely on the basis of his wife's statement, he will serve at least seven years in Jail. In a country where there is absolutely zilch awareness on sexual rights within marriage, such proposition will prove to be a bane than a boon.

A research often used to support the law for marital rape by feminists is one that was collated by the United Nations Population Fund and the International Center for Research on Women, where out of the 9200 men interviewed, one third admitted to having forced a sexual act on their wives. What’s really disturbing is that little more than 3000 men are being used as a sample to conclude that “One third of Indian Men admit to forcing a sexual act on their wives” which basically means that more than 200 million men commit marital rape. That’s an obnoxious conclusion especially if we consider the questions that these men were asked. The study isn’t a specific commentary on sexual attitudes of men and women in a marital relationship but predominantly on notions of masculinity among men in seven states of India where the gender ratio is skewed, and the preference for sons over daughters is high. There are no details on the exact questions that were asked of the male respondents. Clearly, the term rape has not been used while asking questions to either these men or women to consider it as a basis for the enactment of the law.

There is no study or research that has been done on how many women use sex in marital relationships as a means of achieving the desired result which can be anything – materialistic or otherwise. If a wife withholds sex without any reason or consents over the same for a specific demand – can that be called blackmail? I remember being on a television debate on this topic where a professional psychologist – a woman shared how common it is that wives would use sex as a means of getting things they want from the husband. If he doesn’t give in to her demands, he is denied physical intimacy.

In several cases, this continues forever until the husband relents. This constitutes cruelty, but anyone who knows the working of the legal system in India would know how difficult it is for a husband to obtain a divorce in this country. In many cases, women also accuse the husband of being impotent to obtain a divorce. So either you get called as Impotent or be blackmailed or be called Rapist. As a man, you have no say over the sexual intimacy that you can have with your partner. I am in no way saying that the wife of a man can be forced if she doesn’t consent to sex, but what I am saying is that this discussion is not black and white; there are several grey areas.

When I ran a poll on Twitter about the passing of a marital rape law, I received 1205 votes of which 16 per cent said 'Yes, the law should be passed', 52 per cent said 'No' and 32 per cent said it should be passed with a special misuse clause.

I have spoken to several legal experts who have extreme concerns about this law being passed. They are not the ones who are viewing this from any cultural context or the sanctimony of marriage, but purely on the basis of the history of abuse of matrimonial laws and the legal complications if such a law is passed.

Few of the major concerns are -

• The basic premise of consent is by default in a marriage. What would decide absence of it if no signs of injury or visible physical violence are there? Would medical evidence be considered or would this also be merely on the basis of a statement of the complainant?

• While a statement by a woman is evidence in itself, what evidence would the husband produce to prove his innocence?

• What would be the time duration within which the alleged crime could be reported? We have seen cases under section 498A filed after decades of the marriage and years of separation. Cases of rape on the false promise of marriage are being reported across the country where the alleged rape is reported after years of consensual relationship. Would marital rape also be allowed to be reported after years of its alleged occurrence?

• Would the law be Gender Neutral like it is in countries that criminalise Marital Rape? If we talk merely about absent of consent and will, there would be several cases where husbands are forced into having sex too. Would the law be gender neutral?

• Would the case be settled in lieu of monetary settlement just the way it's happening in 498A today? Courts have repeatedly asked for mediation between parties in cases of dowry and domestic violence. Would rape cases reported within marriage be compromised too?

• Who provides for the woman if she is dependent on her husband once he is jailed for months and years while the trial lasts? Would in-laws ever want to continue the relationship? I am not being regressive here, but this is a harsh reality in several dowry cases too. The Supreme court has stated it on record that false dowry cases have made husbands adamant not to take back wives. This law would only worsen the situation.

• What would be a defined punishment for anyone filing a false case? Would the falsely accused be compensated for the loss?

• Would the man be immediately arrested or there would be an investigation into the case and only then arrest enforced?

There are several cases where husbands have already been booked under the rape law even though the crime isn’t recognised yet. We can gauge the understanding of law within the police force hence. If they don’t exactly know the technicalities of a law, I wonder how they will assess the crime once the law has been passed. Lawmakers would not have predicted that there would be a day when the misuse of IPC 498A would be equated to legal terrorism by the highest court in India. Millions of families have been destroyed at the altar of this one single law.

I hope lawmakers will analyse the situation thoroughly before passing the law. I hope they look deeply into the suffering of both the Shwetas and the Adityas of the Country before they give in to the increasing demands of feminists to pass this law. I hope they reflect why Shweta feels there is nothing for her despite there being so many laws for her on the books! I hope they reflect on the efficacy of the dozens of laws we already have.