Maneka’s Right: Marital Rape Is A Crime, But Putting It Into Law Can Come Later

In the US, marital rape is called ‘spouse rape’, with many states raising the bar when it comes to conviction for the crime. Aggravated threats at gunpoint or some such similar forms of coercion are the tougher norms prevalent in the states of South Carolina and Tennessee. While all the 50 states have now criminalised marital rape, most of them award a lesser punishment vis-à-vis rape outside the marriage.

Feminists may bristle at this mention of the US legal position when the European position is more progressive, but there is no gainsaying the fact that marital rape is not easy to prove or amenable to similar treatment as other forms of non-consensual sex.

The desired end-result in non-marital rape is deterrent punishment, which in India can be a life or a death sentence, depending on the seriousness of the crime, including gang-rape or rapes resulting in death of the victim. However, it is quite possible that in India, given cultural norms on marriage being a lifetime commitment, women may be willing to hurt but not wound in cases of marital rape. Any harsh punishment similar to what would happen in the case of other forms of rape could well result in her and her children losing out as well, unless she is a woman of courage or has the means to go it alone. The lesser punishment awarded to spouse rape in the US is perhaps reflective of this woman’s dilemma.

In any case, a marital rape complaint will logically lead to legal separation or divorce on grounds of sexual cruelty because seeking the protection of the law and continued cohabitation are near-impossible dualities.

In fact, the domestic violence law in India is elastic and resilient enough to deal with marital rape as well, but even in this case, it only enables the magistrate to afford protection to the harassed woman and in a women’s home.  It also guarantees the harassed woman the right to stay in the same house in which her tormentor(s) lives if she is prepared to continue her act of defiance and brave daily confrontations.

The late Justice JS Verma, who headed the committee on crimes against women, had suggested drastic changes in our criminal law dealing with rape.  Almost all its suggestions have been implemented save the one relating to marital rape. The committee wanted it criminalised but the law has done precisely the opposite - marital rape has been specifically saved from the definition of rape, much to the dismay of feminists. 

The Minister for Women and Child Welfare, Maneka Gandhi, has invited opprobrium from feminists for choosing not to rock the filial boat by criminalising marital rape.  Her stand is India is not yet ready for women taking such an adversarial position against their husbands. 

Conviction is also that much more difficult even if a wife makes bold to drag her own husband to court on the charge of raping her. The real problem may be that in a significant number of marriages, consensual and coercive sex might well alternate. And traditional forms of evidence may often fail to prove rape.

Having said that, marital rape is not imaginary or fictional---it is a real but difficult-to-prove-or-criminalise crime. Maneka may be right in saying the time may not yet be right to put marital rape on the statute book.