A famous freedom fighter and a towering South Asian personality, 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 violations committed against, within what are claimed to be the ‘sacrosanct institutions’ of marriage and family, cannot be brought to book because doing so will 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 always-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, 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 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 of the family that is to emerge from a wedlock.
Apart from the economic dimension that patriarchy ruled in favor 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.
Far from equality of conjugal rights and obligations, the institution of marriage is an unequal association that has in the past even witnessed the dissolution of the legal identity of the woman who enters into it. Perceived as the one ‘who needs to be taken care of’, it is expected of a woman in marriage to be docile and submissive, depriving her of the right to choice and autonomy of consent. Like the social contract in which certain ‘privileges’ are traded-off for certain rights, in case of marriage which too is a contract, trade-offs too take place, however, with little or no rights to gain in return and certainly not over sexual and bodily controls.
As a result, the scope of sexual coercion is all but eliminated in an alliance where not only is the woman believed to be in the care of her husband, but also in which submission is expected to be the ‘appropriate and desirable’ behavior on her part. In fact, it was not until the 19th century that what was once described as ‘an impossibility’ was finally acknowledged as a substantial issue: the appalling occurrence of marital rape. It was only towards the later decades of the 20th century that concrete actions begun to be taken to declare ‘marital rape’ as an offence that was liable to be punished if practiced. Among the first states to have outlawed marital rape was the Soviet Union, followed by the members composing the Communist bloc. In the US, the demands to criminalize marital rape began bearing results only in the 1970s, gradually resulting in it being treated as a punishable offence in 50 of its states by 1993.
Talking about the gravity of the issue in concern, according to a survey conducted by UN WOMEN, in 2011, only 125 countries had 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.
In 2011, only 125 countries had outlawed domestic violence, while 127 countries did not criminalize rape within marriage.
Coming closer home to South Asia, the willful ignorance to the commission sexual violence against women within marriage continues often on the grounds that its reporting will stand to damage the very foundation of family and marriage that this part of the world is purportedly believed to cherish. In fact, responding to a question raised in the Indian Parliament on the concern of criminalization of marital rape, the Minister of Women and Child Development maintained that while an appalling occurrence that it is, the current social and economic structure in India is such that attuning it to international conventions on the elimination of violence against women (EVAW) will be misplaced. Drawing flak from many corners 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 spouses within the institution of marriage.
Within the Indian setup, while there is social knowledge of the ill that marital rape is, however, there is no cognizance of it as a criminal offence that can be tried under law and be awarded penal punishment for its perpetration. 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 under which any assault that is recorded is subjected to civil and not penal remedies.
While the situation in the world’s largest democracy is abysmal enough, 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 fulfillment 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 constitues 10-15% of Afghanistan’s total population) the right to deprive their wives of food should they deny them sexual intercourse. What was perhaps even worse was an amendment made to the criminal prosecution code of Afghanistan, banning 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 as rampant as those committed outside, this amendment has effectively shut the door to justice to many who have suffered and who might come to suffer in the future for this outright impunity that has been attached to commissioning of crimes within a particular setup.
The case in Pakistan is no different from the above two countries, with marital rape not being recognized as a criminal offence. Domestic violence committed against women within a household has however, been recognized as a 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, the maximum that the Sri Lankan law does is to instate a protective order from the Magistrate that limits the contact between the perpetrator and the victim enforceable law and whose violation is thereof, 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.
(*This is an expanded version of the article that is due to appear in South Asia Monitor under the same heading. The author is a Research Associate at the Society for Policy Studies, New Delhi. She can be reached at: firstname.lastname@example.org)