OVER the past few days, a curious hashtag called ‘#marriagestrike’ has surfaced on social media that is abuzz with polarized opinions on criminalizing marital rape. No, it is not the women this time who are making it trend, but the men who are striking marriage for a year as a counter to the court proceedings.
About the Court Case
The Delhi High Court is hearing four petitions filed by two NGOs that challenge the specific part of the Indian Penal Code which decriminalises rape within marriage. Furthermore, the Bench of Justice Rajiv Shakdher and Justice C Hari Shankar have stated that the Centre must determine its position on criminalising marital rape. In response to it, the union government has requested a “fair time” to reach a conclusion as the topic requires “wider consultation” and “a broader hearing of all stakeholders”.
#MarriageStrike – A Social Movement
Meanwhile, several men have taken to Twitter to protest against criminalising marital rape with the hashtag ‘Marriage Strike’. They argue that if the marital rape is criminalised, it will be used against them by their wives. Moreover, they fear the consequent financial devastation through divorce and false cases.
But the hashtag trend has now become a ‘feminist’ versus ‘save men’ issue. While men are swearing to never get married, Twitter users on the other side of the spectrum think that ‘#MarriageStrike’ has turned out as a feminist movement since it exposes the personal views of several men and saves women from marrying them. Famous activists and journalists also jumped on the bandwagon with their counter tweets to the trending hashtag. One such tweet was from activist Kavita Krishnan who said that men who think that consent has no place in marriage should be on strike forever.
But what is the matter all about? What does the law say about marital rape? Why is it being challenged? Why should you be bothered?
Let’s first understand Section 375 of the Indian Penal Code.
IPC Section 375 defines rape as when a man has sexual intercourse with a woman under six circumstances— “against her will”, “without her consent”, “with or without her consent, when she is under sixteen years of age” to name a few. But the ambiguity begins when it mentions an exception stating, “Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” It essentially gives a husband the right to rape his wife with impunity. Though the age has since been raised to eighteen years.
Most Western nations like the USA, France, and Germany have gotten rid of this exception. In fact, non-Western nations like Nepal, Malaysia and South Africa have criminalised marital rape. Guess what? Currently, while rape is an offence in India, marital rape is not.
In fact, 2015 National Crime Records Bureau (NCRB) numbers claim that in over 90 per cent of cases, the sexual assaulter is known to the survivor. Moreover, the recent NCRB report said that as many as 32,559 cases of rape were reported in India in 2017 and the accused were known to the victims in 93.1 per cent of the cases.
Another shocking statistic reported that offenders in 96 per cent of the rape cases reported in India in the year 2020 were close family members, relatives, neighbours or friends of victims.
It may be a hard pill to swallow, imagining a close relative would commit such an offense, but it is true and happens with shocking frequency. It is thus, the need of the hour to make marital rape a punishable offence. But the government of India thinks otherwise.
Why India has not banned Marital Rape Yet?
For India, marital rape has not been criminalized due to the following reasons.
1. Striking down the exception will create a new crime — which is the remit of Parliament, not the courts.
2. Moreover, it is difficult to prove a marital rape and,
3. It can disrupt the “family values” which are apparently sustaining our country.
Legal expert Gautam Bhatia points out that these claims are illogical.
Claim 1: Creation of new crime
Counter: Section 375 clearly lays out what constitutes rape but why does it shield one specific category of criminals, the husbands from prosecution?
Bhatia says that the deal is just to remove the law which has become anachronistic and offensive.
Claim 2: Hard to prove a marital rape
Counter: Gautam Bhatia refutes the claim by saying that on an average three-quarters of all sexual assaults are committed by someone already known to the survivor. Due to this, a vast majority of sexual assaults occur in intimate settings. But this should not stop the courts from sifting through difficult issues around evidence and proof. Moreover, an analysis by the government data estimates that almost 99.1 per cent of sexual violence cases go unreported. More importantly, women are 17 times more vulnerable to face sexual violence from their husbands than from others.
Claim 3: Preserving marriage
Counter: Criminalising marital rape would “create absolute anarchy in families and our country is sustaining itself because of the family platform which upholds family values.” The remark was made by the former Chief Justice of India Deepak Misra. Gautam Bhatia argues that preservation of marriage is nowhere defined in the Constitution as an aim of the government or the judiciary. Further, the claim violates the right to equality.
Bhatia goes on to say that the law is arbitrary by stating that sexual assault will be rape if it is committed within the context of a live-in relationship or any other intimate relationship. But when a relationship has been formalised, it suddenly becomes legitimate.
The responsibility of the #MarriageStrike trend has been taken by Save Indian Family Foundation (SIFF), a men’s rights advocacy group founded in 2005. The group has been requesting the lawyers of the Delhi High court not to dismiss them as “2nd class citizens” and meet their demands before calling for numerous laws for women.