The answer given by Women and Child Development Minister Maneka Gandhi in Rajya Sabha yesterday on the question whether government has plans to criminalize marital rape, is a word to word copy of the answer given by Minister of State for Home Affairs Haribhai Parathibhai Chaudhary in Rajya Sabha in April 2015.

This is the second time the central government has clarified its position on criminalisation of marital rape using the exact same words:

“It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament etc.”

Since it is the official position of the government and not a passing remark by a minister or MP it becomes important to understand what is marital rape in the international context and why government thinks it cannot be applied to India.

The international position on marital rape – CEDAW

The legislature of every democratic nation makes laws according to its socio cultural diversity keeping in tune with the international standards of human rights and justice. The Universal Declaration of Human Rights (UDHR) is recognized as the source of international standards of human rights. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is recognized as the source of international laws related to women’s equality. India is committed to follow the standards laid in both these documents.

CEDAW is an inclusive document, it does not specifically define each and every act of violence and discrimination but broadly defines what is ‘discrimination against women’ and urges member states to follow its standards. From time to time there sits a CEDAW Committee which prepares reports on the performance of every member state, and reminds them of the failures and urges them to follow CEDAW standards.

In July 2014 the CEDAW committee in its Concluding observations on the combined fourth and fifth periodic reports of India expressed concerns over India’s failure to eliminate all discriminations.’ The committee urged India to:

(a) To implement the recommendations of the Justice Verma Committee regarding violence against women;

(b) To amend the Criminal Law (Amendment) Act, ensuring that marital rape is defined as a criminal offence, as requested by the Committee in its previous concluding observations.

The Justice Verma Committee in December 2012 recommended  that the exception to Section 375 of IPC allowing marital rape should be removed.  Marriage should not be considered as an irrevocable consent to sexual acts.

In lay person’s understanding ‘marital rape’ is forced sex or non-consensual sex with one’s wife. In spite of several reminders and recommendations by CEDAW the Indian government has failed to call it a crime. So essentially the government is saying, “You are not allowed to rape random stranger women, if you need sex, go home and rape your wife.” The feminists throw their hands in air in frustration asking “Why on earth is it ok to rape the wife?” The government’s answer is “Because we are poor illiterate and have a regressive mindset that treats women like shit.” “And what about India’s commitment to follow CEDAW standards?” Ask the sane minds. “Err, the government is first committed to safeguard sacred Indian marriages.”

What is sacred Indian marriage?

  • A sacred Indian marriage is one where a young girl, who have been always kept segregated from men and taught “good girls don’t talk to boys,” is suddenly pushed inside a room with a stranger who is allowed to rape her because he married her.
  • Sacred Indian marriage is one where the wife is treated as nothing but a prostitute who must offer sex in exchange of home, clothing and shelter. It may be safely assumed that sex workers have more dignity and better sexual agency than a wife in a sacred marriage where she has no right to say no to sex.
  • Sacred Indian marriage is one where a woman has no right over her own body, she has only two choices, either get raped or get beaten because statistics say, both men and women believe that it is okay for men to beat their wife if she refuses to sex among other things.
  • Sacred Indian marriage is one where the society thinks that the woman’s womb belongs to the Hindu Rashtra which may be used as a factory to produce 10 Hindu male children. The female children being born in the process may simply be discarded as by products.

Whenever women ask for equal rights and respect society says ‘NO’, we must save the Indian family structure and the sacred sacrament of marriage. The valuable pillars on which Indian family structure stands are: dowry, domestic violence, marital rape, female feoticide, murder of women’s dreams and desire and a complete denial of her rights to break away from such a marriage. Divorce particularly sought by women is a taboo which is the reason why most Indian women suffer domestic violence and marital rape in silence.

The day all Indian women would understand and assert their rights, dignity and equality and will have the access to justice and resources to do so, the so called sacred family structure will crumble like a cookie. Because essentially the patriarchal and patrilocal family system is built upon unfair sexual division of labour, and gender and age hierarchy. There is nothing sacred about such a marriage or family system.

Difficulty in proving marital Rape

A common defense behind allowing husbands to rape wives is that it is difficult to prove marital rape. The fact is, all rapes are difficult to prove. Marital rape is not any extra difficult. How are rapes investigated and proved? Facts and circumstances are gathered, medical tests are done where the doctors look for signs of struggle, bruises around private parts, proof of penetration, vaginal swab, DNA tests etc. It is well established that if a woman stopped struggling due to fear of being killed or assaulted it is still a rape even though struggle marks cannot be found. In case woman is drugged or sleeping or in coma that too is rape even though no physical violence or bruises are present. All these cases are difficult to prove and that’s why so many rapists go scot free. Why should marital rape be treated differently on the ground that it is difficult to prove?

Who made government the custodian of regressive mindset?

The government talks of being an international destination, inviting foreign investments, collaborations, it talks of digital India, make in India, scientific development, space programs and nuclear power yet when it comes to protecting a woman from being violated against her will, the government steer clears from its responsibility on grounds of ‘education/ illiteracy, poverty, social customs and values, religious beliefs, mindset of the society’

Are these not the very root cause of discrimination against women which we have been trying to challenge, change and / or eradicate since the time of Raja Ram Mohan Roy and Vidyasagar? The regressive social mind-set that used to set widows on fire along with husband’s pyre; the religious beliefs that women must worship their husband Gods without question; social customs that treated widows as inauspicious and shunned them away from celebrations – when did the government become the custodian of these awful regressive sexist values?