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The law is a complete ass. Our legal system is such that while sex between two consenting adults is illegal (when they are of the same sex), marital rape is still not a crime in India. Woo hoo, doesn’t our legal system, obviously there to uphold our grand Indian values, rock? On February 18, 2015, the Supreme Court refused to entertain a woman’s plea, saying it wasn’t possible to change the law for one person. A Delhi-based MNC executive had told the court that her husband had repeatedly raped her, shoved a torch light down her vagina and subjected her to dowry harassment. But since marital rape was not considered a crime, her husband’s acts were considered an offence similar to physical violence. She had asked the law to be changed. (An open letter to the rapists: That little impotent thing inside your pants makes us nauseate)
‘You are espousing a personal cause and not a public cause…This is an individual case,’ a bench of justice AR Dave and justice R Banumathi said, refusing to take up her plea. The woman had challenged the validity of an exception to the Sec 375 of the IPC that says that sexual intercourse between a man and his wife can’t be termed rape, with or without consent. The bench said that it couldn’t entertain the petition and the woman’s lawyer Colin Gonsalves told HT: ‘We would move the court again on the issue….may be through a women’s organisation.’ This means that till that happy day comes around and the law stops being an ass, sexual intercourse with one’s husband will be considered an offence like physical violence.
Note to the easily offended: If you are indeed looking for causes that ‘offend’, this is far more offensive than bad humour, cuss words, someone wearing the tricolour wrongly or making fun of a fascist leader. Justice Verma’s comprehensive report after the horrendous Delhi rape which led to new rape laws had asked for the addition of marital rape as a sexual offence but the Centre didn’t have the balls to go through with it.
Our laws about sexual assault
So why are our laws dealing with sexual assault so stupid? The main reason for this is the fact that our penal code is based on beliefs that were in vogue in 19th Century England and this has resulted in de-criminalising of marital rape and the criminalising of homosexuality. Think about it, the law says that consensual sex between two adults is illegal but forced sex between married couples is all right. Basic human rights, WTF are those? The new Criminal Law (Amendment) Act, 2013 which was Basic human rights, WTF are those? The new Criminal Law (Amendment) Act, 2013 which was passed in the Lok Sabha on Feb 2013 with many inputs by the Justice Verma Panel had a lot of changes but the watered-down version that was passed down by our lawmakers still had some legal loopholes!
Criminalise marital rape
The Justice Verma Committee had recommended doing away with the earlier law bit which didn’t recognise marital rape as a crime. Their report read: ‘Under the Indian Penal Code sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un- consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts.’ The country strengthened its sexual assault laws based on the committee’s recommendations, but the marital rape law big remained unchanged!
Is family more important than basic rights?
The received wisdom is that marital rape bit didn’t see the light of the day because that law would’ve destroyed the institution of marriage (even if it has been forced upon some) and would end up putting the entire family system under stress. And clearly, nothing’s more important than loving your family. It seems like the law of the land is more worried about upholding the family structure – including potential rapists– than care for woman’s rights. While, legally speaking, it is harder to prove marital rape that still doesn’t make it fair for married women to have no legal recourse against their husband.
Ladies, you can’t say no too often!
So why are things like that? Maybe it has something to do with other laws, which makes it illegal for a wife to say no to her husband for too long (Restitution of Conjugal Rights/Right to stay together – Hindu Marriage Act 1955). The actual legalese says: ‘If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.’ In simple layman terms, a woman can’t accuse her husband of rape, but the husband can legally take her to court for saying no to sex! And it gets even worse for Muslim women because, while the legal age for marrying is 18, so it’s legal for a 15-year-old Muslim girl to be married. The Prohibition of Child Marriage Act 2006 doesn’t apply to Muslims. A Gujarat High court actually observed: ‘According to the personal law of Muslims, the girl, no sooner she attains puberty or completes 15 years of age, whichever is earlier, is competent to get married.’
The prevailing logic of not having a Union Civil Code was that the minority community should be allowed to manage its own affairs! But shouldn’t we be bothered about the minority within the minority? Shouldn’t women enjoy the same basic human rights irrespective of the community she was born in? The answer for now is definitely ‘No’.
PS – Are there any laws that allow a girl to say no to a prospective husband who’s been forced down her throat? What if she doesn’t want to spend her life with the man of her father’s or someone else’s choice?
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