Manjima Bhattacharjya writes: A law won’t end marital rape – but it’s needed all the same

Over this year, there has been a rising chorus of voices asking for this exemption to be struck down. In January, two judges of the Delhi High Court started to hear petitions filed by individuals and civil society organisations challenging the exemption. By May, they had arrived at a controversial split verdict. One judge was in favour of criminalising marital rape as it violated a woman’s right to consent, while the other was against it, saying marriage “necessarily” implied consent. The matter was pushed to the Supreme Court.

A set of counter-petitions sprung up by “men’s rights groups” who argued that removing the exception would lead to “a deluge of false cases” against men and “affect family and social relationships”. In March, meanwhile, a Karnataka High Court did not quash a particularly brutal case of a man accused of rape by his wife and allowed it to go to trial, indicating that the judicial system did recognise marital rape. In September, a Supreme Court ruling on women’s right to safe abortions regardless of marital status held that for the purposes of the Medical Termination of Pregnancy Act, the definition of rape should include marital rape.

The signs were looking good for a more robust legal conversation on marital rape. Finally, this week, the Karnataka government came out in support of the March Karnataka High Court ruling. It surprised many, as it brought the BJP- Karnataka government into likely conflict with a different position held by its own party members in the BJP-Union government.

What is the position held by the Union government? Five years back, the government had raised concerns that criminalising marital rape would destabilise the institution of marriage and was against Indian culture. They told the Supreme Court that this was an issue that could affect the “social fabric” and wider consultations were needed. Consultations may or may not have happened in government, but the developments over the year have certainly created a buzz on the ground.

For the first time, I have heard more and more references to marital rape in both rural and urban locations and among NGOs working to improve the lives of marginalised communities. Marital rape is entering local conversations but there is still an uncomfortable silence around going too deep into the matter as it touches on a complex and painful terrain.

Grassroots activists are concerned that while women want the violence to stop, they don’t always want family members – people they might even love and depend on – to be criminalised. It is clear we need to talk about marital rape, they say. But how can we talk about it, is the question for them. In some places, talking about consent has become an effective entry point to have a wider conversation on how to have healthy relationships. In others, dialogue on masculinities and how it puts pressure on men to behave in certain ways with their wives have been powerful. But there is a serious gap in research and data, especially qualitative data on marital sexual violence that could have been a starting point for collective dialogue.

Like the silences around the kidnapping and rape of an estimated 1.00,000 women during Partition, or the early days of speaking openly about domestic violence, narratives of women’s experiences of sexual violence by their husbands are inaccessible, buried deep over generations of pain and hurt. How can we unearth it? What kinds of trauma will it trigger? Are we ready to have these conversations?

Controversies in law have also been a good place to start, where it is easier to abstract a sensitive topic into an academic argument and prepare the ground for more authentic discussions to take root. Hanging over these discussions is a dark cloud of fatigue: A feeling that laws have not really changed that much on the ground. Almost 20 years of the Domestic Violence Act has not stopped the everyday reality of domestic violence. Even then, thousands of women have used the response systems created by the law to escape violent relationships. Stricter laws or even death penalties for rapists have not reduced the sexual assault of women. Yet the quality of conversation around sexual assault has changed, with a new generation of women believing that they have a right to a violence-free life. This is not only because the laws exist through struggles by women’s movements, but the accompanying conversations and multi-pronged efforts in civil society to bring about social change.

Will another law that explicitly criminalises marital rape really matter? Even in countries where marital rape is criminalised, high rates of spousal sexual violence continue to be reported. Will women actually use such laws to further complicate already complex lives and webs of relationships?

This ambiguity is something we must live with in modern society: The need for laws that clarify boundaries in how we relate to one another and uphold constitutional ideas of equality, dignity and bodily autonomy, alongside the unpleasant social realities about their limited use in practice. Laws are an imperfect solution to social problems, but to clearly, loudly and unambiguously say something is not okay, signifies something beyond itself. Some lines must be drawn, even if in the sand. Norm setting is an important function of law, as is breaking the silence on things that simmer beneath the surface.

This year has certainly seen a breaking of some silences on marital rape and the beginning of important conversations. And conversation, we know, is often the beginning of any change.

Bhattacharjya is a researcher and author of Intimate City