By Chayanika Saxena*
A famous freedom fighter and a towering figure in the pantheon of leaders in South Asia, Khan Abdul Ghaffar Khan, had famously observed that if one needs to know how civilized a society is, one got to see how it treats its women. But what happens when the very society instructs you to believe that the violations committed against them within what are claimed to be the ‘sacrosanct institutions’ of marriage and family cannot be brought to book because doing so would shake the foundations of what we are made to believe are inviolable cocoons?
The recent flare-up in India on the issue of ‘marital rape’ that many of us, including the state, has turned a blind eye to, not only questions the very allure of safety that is attached to social institutions like family and marriage, but it also comes to show how the categories of what is an offence and what is not are essentially contingent in their nature.
The issue of marital rape – which is also known as spousal rape or rape in marriage – amounts to the perpetration of sexual cruelty against one’s spouse. While the scope of its definitional understanding includes persons of both the genders, however instances of perpetration of sexual violence against women in marriages are on a higher side when compared to the incidents reported from amongst men.
It is critical to note that despite an avowed belief in individualism and autonomy that the so-called neo-liberal order makes (almost) the world swear by, our actions are defined and re-defined within an evolving societal framework. To this effect, right from the very definition of what counts as ‘marital rape’ to whether there will be a definition of such sort at all or not is determined by the social, economic, political and cultural forces that prevail at any given time.
Predicated on a patriarchal order, the socio-cultural institutions of marriage and family are embedded within the norms that underlie this order, and which in the most generic way can afford the following description: domination of the masculine over the feminine. As a result, within both these institutions (marriage and family), the order flows in a rather hierarchical fashion, establishing a relationship of dominance between the husband and wife and between the parents and their offspring. Particularly within the ambit of marriage, the relationship of domination is such that it often places women at the receiving end on many fronts, right from the very biased perceptions about the work they do (which is often branded as unproductive for lacking an apparent economic yield) to the denial of freedom to govern and regulate their sexual activities.
There is thus, an interaction of forces that carve out the domain of marriage in a way that builds on patriarchal dictates, which are in turn based on the premise of the subordination of the feminine (wife) by the masculine (husband) in a typical heterosexual marriage. In fact, interestingly, the concept of a ‘husband’ in a marriage is often seen drawing a parallel in the profession of ‘husbandry’, which vests considerable power to determine the allocation or use of resources in the hands of that who possesses the title, and which in typical heterosexual marriages rests with the male for it is he who has traditionally regarded as the bread-winner for the family that is expected to emerge from the wedlock.
Apart from the economic dimension that patriarchy ruled in favour of men, the normative constructs of masculinity and femininity also came to ensure the submissiveness of the latter and, even, submission. As a result, within the confines of marriage, the rein of economic control combined with a position of subordination that is consigned to women creates a semblance of alliance in which submission is made the norm and practice.
In fact, according to a survey conducted by the United Nations’ specialized agency on Women, UN WOMEN, in 2011 only 125 countries outlawed domestic violence, while 127 countries did not criminalize rape within marriage. It was estimated back then that about 603 million women worldwide live in countries where domestic violence is not considered a crime, while more than 2.6 billion live in countries where marital rape is legal.
Closer home in South Asia, the wilful ignorance to the commission of sexual violence against women within marriage continues often on the grounds that its reporting will be damaging to the social norms, customs and would even stand to damage the very foundation of family and marriage that this part of the world cherishes. In fact, responding to a question raised in the Indian Parliament on the criminalization of marital rape, the Minister of Women and Child Development maintained that the current social and economic structure in India does not allow the government to align laws with international conventions on the elimination of violence against women (EVAW). Drawing flak from women’s groups and liberal sections on the sheer absurdity of the connection drawn between the socio-economic health of the country and the concerns related to conjugal inequality and violence thereof, the statement came to highlight the prevalent social and political reluctance to bestow on women the very right to be equal to their spouse within the institution of marriage.
Within the Indian setup, while there is acknowledgement of the psychological consequences of marital rape on a woman, however, there is no cognizance of it as a criminal offence that can be tried under law and be awarded penal punishment for its commissioning. Drawn along the lines of the 1860 Indian Penal Code which specifically states that “Sexual intercourse by a man with his own wife is not rape”, the existing laws in the country stipulate criminal prosecution and punishment against forceful intercourse within marriage only and only when the wife is under 15 years of age. In cases where the wife is above the said age, any sexual assault subjected on her within marriage can be tried only under a rather wide Protection of Women from Domestic Violence Act that was implemented as recently as in 2005, and which any assault that is recorded is subjected to civil and not penal remedies.
While the situation in the world’s largest democracy is nothing to cheer about, the case in Afghanistan is far worse. Considered to be one of the worst countries for one to be born as a woman in, surveys conducted by Global Rights have come to record that as high as 87% of Afghan women are likely to face some form of violence in their lifetime, with about 62% experience multiple forms of violence, including forced marriage and sexual violence. In fact, such is the tattered state of women’s rights in Afghanistan that as recently as in 2015, a woman was stoned to death in the province of Ghor for something as inane as falling in love and seeing to its fulfilment by running away with her lover.
In a country where fleeing from an abusive household is liable to tried under penal law, it would certainly not come as a surprise to know that a law was ratified by the Parliament and the President in 2009 which allowed men belonging to the Shia sect (which constitutes 10-15% of Afghanistan’s total population) the right to deprive their wives of food should they deny them sex. What is worse that an amendment that was made to the criminal prosecution code in Afghanistan which bans relatives of an accused person from testifying against them. Not only does it not allow the victim, should he/she be related to the perpetrator, the right to testify against him/her, but in a country where abuses within the household are more rampant than those committed outside, this amendment has effectively shut the door to justice to many who have suffered in silence for long.
The case in Pakistan is no different from the above two countries, with marital rape not being recognized as a criminal offence, although domestic violence committed against women within a household has been recognized as criminal offence in the provinces of Sindh and Balochistan.
Sri Lanka too does not treat marital rape as a criminal offence unless a judge has ordered a spousal separation. Similar to the Indian case, where the 2005 Prevention of Domestic Violence Act (PDVA) provides some protection, however the maximum that it does to instate a protective order from the Magistrate that limits the contact between the perpetrator and the victim enforceable law and whose violation is punishable.
Having inherited the Indian Penal Code (1860), the laws in Bangladesh too do not outlaw marital rape. The section 375 of the Penal Code of Bangladesh mentions that criminal prosecution will be initiated against the perpetrator of sexual assault within marriage only if the wife is under 13 years of age. The other legal provisions dealing with violence against women such as, Nari-O-Shishu Nirjatan Domon Ain, 2000, and Paribarik Shohingshota (Protirodh-O-Shurksha) Ain, 2010, skirt the issue of marital rape completely.
Nepal and Bhutan appear to be the only outliers in the South Asian region in dealing with the issue of marital rape, where sexual violence committed against one’s spouse (in most cases, women) was declared an offence in 2006 and 2004, respectively. However, despite the progressive ruling, the social barriers that are there to reporting such instances have taken away from the effectiveness of the law, combined with the fact that the punishment that this offence attracts ranges between 3 and 6 months of imprisonment in Nepal, while in Bhutan, the same offence is regarded as ‘petty misdemeanor’ and is thus, not treated as a criminal offence.
In a region where discrimination against women runs rampant, and in a great deal of cases is ignored on the grounds of traditions and customs, stability and harmony will continue to elude for as long as attempts are not made to treat ‘half the sky’ in a way the other half is.
*Chayanika Saxena is a Research Associate at the Society for Policy Studies, New Delhi. She can be reached at: [email protected]