It’s Not Rape If We Are Married!
Kamalpreet* is a 23-year old designer with her own boutique in Ludhiana. Two years ago, she married a man chosen by her parents in a lavish ceremony. The couple, both from families of agriculturists, moved into an apartment purchased for them by their parents. Having had harboured dreams of a marriage such as this for many years, Kamalpreet was excited. As she vowed to be with him forever, she truly believed it.
She could not believe it when she was back home six months later.
Over coffee, on the stairwell of a district court, she tells me about her husband, “Woh mujhe rape karta tha,” she says, “Marta bhi tha par zabardasti sex karta tha.. zabardasti unnatural sex bhi karta tha. Saara din. Roz.”
(Translated: He used to rape me. He hit me too but he mostly forced me to have sex. He even forced me to have “unnatural sex (read: anal sex). All day. Every day.)
Unfortunately for Kamalpreet and all other married women in India, there is a caveat in the fine print of the marriage contract that essentially stipulates that if you are married, you cannot be raped by your husband. Section 375 of the Indian Penal Code outlaws marital rape only if the wife is under the age of 15, which is especially strange in a country where the age of consent is 18 (and formerly 16). Until you are 18 you are not, by law, old enough to decide if you want to say yes (or no) to sex but you are somehow, by law, old enough to be married and unrapeable.
The call to criminalize marital rape has been raised time and again, arguing primarily that assuming perpetual consent in a marriage on the part of the wife is dangerous, undermines the agency of women, and is ultimately a gendered law. However the Government of India, in continuation of its bizarre defence of marriage as an untouchable institution of godliness, had always maintained that outlawing marital rape, or rather detailing it, will undermine the sanctity of marriage. We like to use our law to protect the sanctity of things in India, the welfare and safety of actual people has often been secondary in the fact of the sanctity of an institution whose dismantling makes some old men really uncomfortable.
Where are we right now?
At this moment the matter of marital rape as the RIT Foundation versus the Union of India is pending in the Delhi high court. The current Indian government in commenting on the matter has said that criminization of marital rape is dangerous as it “destabilize the institution of marriage” and become a tool to “harass husbands”. In that their fear of harassment comes from the often abused and recently amended section 498(a) of the IPC which allowed (until recently) the unbailable arrest of any man accused of cruelty without any evidence. While the nature of that law was well-intentioned and ultimately problematic, it is now being used as the back that is broken to stop other types of progress. After all, one law that was poorly designed, and not entirely thought out, does not mean another law should not be made. Only that it should be made better and with more deliberation.
However this is not just about that.
The need to protect the institution of marriage comes from the Indian inability to discuss any matters related to sex and to banish them to a world where they are merely sanctimonious concepts that exist within the confines of a beautiful relationship and is absolutely never talked about. Furthermore there is a long-standing patriarchal movement that encourages women to think of, and perform, sexual activity as a form of duty and service, that is to be endured in exchange for the stability and safety of marriage. Sex has often been presented to women as a painful act they are to bear for the satisfaction of their husbands, and this attitude itself, which is relevant because the culture of a place influences its laws, undermines a woman’s right to consent. It presumes in itself that what wives have to do is unpleasant but they must bear it, as the cost of being a wife. Most women do bear it, they find coping mechanisms and distraction techniques.
Some women, like Kamalpreet, recognize it for the violence that it is and want justice, but what can you do when there is a crime against you and you cannot find the law that protects you from it?
For a long time now the myopia of the judiciary has been circumvented by filing vases of sexual abuse under the Domestic Violence Act of 2005 which protects women (married and otherwise) from emotional, mental and sexual abuse.
In this context sexual abuse is defined as, “conduct of a sexual nature such as forced sexual intercourse, forcing the aggrieved person to watch pornography or other obscene material. Forcibly using woman to entertain others, any other act of sexual nature, abusing, humiliating, degrading or otherwise violative of one’s dignity.”
The specific definition of all these terms is loose however so are convictions, and even Kamalpreet’s lawyer, advised her to play up the physical and economic abuse much more than the sexual abuse because that bettered her chances of getting a conviction against her husband. In all of this, we ignore the humanity of the victim completely. Kamalpreet after having faced months of torture, violence and rape shouldn’t have to be parse through her trauma to be able to best strategize her chances at justice. Even as she talked about the details of the case, she teared up and broke down behind the courthouse when no one was looking.
And she is a woman who had the support and opportunity to get out, and actually make it to court, there are millions more like her who can’t do that. There are thousands who don’t know if there is even anything they can do, and for many of them there isn’t, because as far as Indian Law goes on marital rape, the buck stops with the victim. You either endure or leave, but you don’t expect it to stop. Women are often touted for their strength in endurance but it is often overlooked how we developed that “strength”, you have no choice but to do that when you have no recourse, and there is nothing more debilitating that realizing the legal recourse for your trauma doesn’t even exist.
Because, after all, it is trauma.
As someone who has experienced the harsh reality of intimate partner violence, I can attest that when you say no and no one cares, you internalize that message. When you have no choice in the matter of sexual activity it leaves a bitter taste in your mouth that guarantees that you cannot enjoy it. Indian women have the highest prevalence of vaginismus in the world, vaginismus is a sexual disorder characterized by painful intercourse often caused by a history of sexual abuse because as much as we’d like to pretend we don’t understand it, sex is all biological impulses and carnal desire. It’s as physical as an activity can get, and when your brain wants you to say no, your body has already said it. If your body is not ready to be engaged in sexual activity that resistance turns into trauma one forced encounter at a time, and that reinstates in another generation of women that sex is a painful duty to perform for health of the marriage.
The trauma is just the cost of maintaining the stability of the institution of marriage, to be borne in silence, because that’s what women do, we endure.
About the Author:
Aarushi Ahluwalia is freelance journalist associates with various organisations like BBC, CNN, Guardian, Cobrapost who works primarily on issues of gendered violence and discrimination in India. She has two cats and a headache from all the mansplaining.