Who will benefit from criminalising sexual assaults within marriages?

“The government on Monday justified its decision not to include marital rape as a sexual offence in the Criminal Law Amendment Ordinance, 2013, saying that this could weaken the institution of marriage…”  [ Link ]

Why is it felt that allowing rapes within marriages strengthens the Institution of Marriage?
Then, what kind of marriages do marital rapes strengthen? And what kind of Institution is Marriage seen as?
Why do we need to protect and strengthen any Institution in ways that it puts innocent citizens at risk of being sexually assaulted?
Who benefits from an institution that is weakened without sexual assaults being permitted within it?

Why is there so much hesitation in understanding or acknowledging that women (just like everybody else) own their bodies; and that sex without consent is rape, no matter who does it?

It seems, once a man is married to a woman, even if she is legally separated from him, his sexual assault on her is seen as a lesser crime. How is this justified?

Here’s probably why raping a legally separated wife is seen as a lesser crime than raping other relatives, colleagues or neighbours:

1. Maybe it is felt that sexual crimes are assaults on a victim’s honor and not on the person; so if the rapist was once married to the woman, she can’t be ‘dishonoured’ by him. Same logic makes marital rapes impossible. If rapes are dishonour, how can a husband (Pati Parmeshwar) sexually assaulting a wife be seen as ‘dishonouring’ her?

2. Also, many Indians believe when an man marries a woman, he is entitled to Dowry, Male children, Sex on demand and an obedient care giver for his parents. Once an Indian woman is married to a man, consent is seen as given. Some commenters wondered why any man would ‘marry and maintain a wife’ at all if he needs to seek consent for sex from his own wife. [This doesn't help: link, link.]

(This was one of the points raised during the walk organised for The One Billion Rising event in Gurgaon. I wonder if those listening were astonished to hear women convey that only Yes meant Yes.)

These are some concerns expressed by TOI commenters and many others, about criminalising Marital Rapes:

#How will such assaults be proven?

If a crime is difficult to prove should we refuse to acknowledge it? Does legalising a crime make the victims safer? The same logic can be used for Domestic Violence, and verbal abuse.

#What should be the punishment if the husband is convicted of sexually assaulting his wife? Shouldn’t the wife simply divorce such a man? 

The punishment should perhaps be same no matter who commits the crime? What do you think?

Consider this: In Saudi Arabia, a man raping, torturing and killing his own wife or child is taken less seriously than a man killing another man’s wife or child. It is believed that the crime is against the man (and his honor) [link].  The basic idea is the same: That some people have unlimited rights on some other people, or that some people own some other people.

#And who will benefit from criminalising sexual assaults within marriages and making Marital Rapes a criminal offence?

All these young women and children married to their rapists are amongst those who would benefit. It was understood and accepted in all these cases (and by many TOI commenters, Khaps, many Indian women and men) that husbands have a right to rape their wives. [Remember many Indians think rape and 'sex outside marriage' are the same link, link, link,link].

1. I have blogged about my maid who had run away from her marital home and then threatened to hang herself before her parents allowed her to stay back, she said her husband raped her brutally. [When life ends at twelve.] No attempts to report or seek justice, no action against husband. 

2. Another domestic helper used to beg her mother in law to protect her from her much older husband, and years later used to wish he would die because there was no other way she felt she could be free from his sexual assaults. [The Life And Times Of Another Indian Homemaker.] No attempts to report or seek justice, no action against husband. 

3. Another woman in Haryana was not only raped by her husband but the rapes were so brutal that it was feared that she may never conceive (a big concern in her second marriage, where she is still happy because, ‘atleast they give me food’) [LinkNo attempts to report or seek justice, no action against rapist/husband. 

4. Here’s another account from “The women who have to sleep with their husbands’ brothers: Shortage of girls forces families into wife-sharing” [Link]

‘They took me whenever they wanted – day or night. When I resisted, they beat me with anything at hand,’ … Munni, who has three sons from her husband and his brothers, has not filed a police complaint either.  [‘Four kinds of marriages in modern India. Which ones would you ban?]

5. Three of his sisters and six of his nieces eloped, so he decided to drill holes and padlock his wife’s genitals.

6. This is what Haryana Khaps are not saying.

7. I recently met a middle class, educated woman, now working and separated from her differently abled husband. She said they had no real communication, affection, or any relationship but she had to ensure the husband was ‘happy and satisfied’ (sexually). She said, the in laws were wealthy and did not ask for dowry, they just wanted to ensure that their son had a sexual partner and care giver. Although the woman is separated now, she did not even consider reporting or seeking justice, or taking action against the rapist husband.   She is just glad to be safe from his assaults and legally (and socially) he had committed no wrong.

I think it is also felt that ‘getting a man a wife’ ensures he does not rape other women.

Please do hear what Kavita Krishnan has to say.

https://www.youtube.com/watch?feature=player_embedded&v=iuBNYYPtxkU

Demand that Parliament Enact a Law Against Sexual Violence Based on Justice Verma recommendations! No to Eyewash Ordinance!

Do also read,

Justice Verma Committee Proposes A Bills Of Rights For Women, National Legal Research Desk

Making Marital Rape a legal offence is the fastest way to make it clear that Rape means forced sex, not lost Virginity or Honor.

Where Consensual Sex is Rape, and Forced Sex a legal right.

125 thoughts on “Who will benefit from criminalising sexual assaults within marriages?

  1. I think the idea is that once married, a man has “rights” to the wife’s body. They believe that being married authorizes him to have sex as and when he likes. No consent of the wife is to be taken.

    They still do not grasp the idea that even if married, a woman has right to her own body.

    As for Marital rape, it will be difficult to prove. Unless the rape leaves marks of force such as bite,scratch or other proofs of assault as well, it can prove difficult to prove. But once proven, the rapist should be punished as much as a any other rapist and not leniently.

    I think this is not passed, because they still don’t grasp the idea of a woman owning her body, and not her husband.

        • If you like attaching the word rape to trivial non- issues that you’re incapable of sorting out with your own present/future wife, maybe you should think hard and long about WHY you want to trivialise rape.

        • Rape is a legal crime and we are discussing whether husbands should be exempt from being charged with it (as they currently are). Can you please find us a legal definition or ‘financial rape’ accepted in any court? Perhaps you just mean financial fraud, blackmail or stealing? A man’s wife has no exemption to such charges.

          More importantly, why you are equating spending money with violating another person’s body by raping them? Is sex always a compensation for money? Your ideas of give and take within a marriage sound like prostitution, although even having sex with a prostitute against her wishes is rape (but you probably don’t agree). Are you saying that if a man is made to spend money by his wife then he has the right to rape her? Would you say that he has the right to cut of her limbs? If not, then what’s the difference? They’re both crimes against her body.

          The law does not give anyone the right to take ‘revenge’ themselves if they feel they have been wronged. A woman is not allowed to kill her rapist with impunity. If you feel a woman stole money from you, you can call the cops on her, but you do not have the right to rape her to make things even. That shouldn’t change because you happen to be married to her.

        • This is a huge part of the problem RAPE both the word and the act is trivialized so much that the enormousness of its impact on women and society is diluted by people who hold such views.

        • How can anyone “spend money without consent”? You mean the wife forces her husband’s hand into his wallet, makes his fingers open, presses them around his credit card and then forces his hand to give the card to the cashier? All the while the man is screaming and protesting? :D

          Do you realize how funny and illogical you sound?

        • @ Bhagwad

          ‘How can anyone “spend money without consent”? You mean the wife forces her husband’s hand into his wallet, makes his fingers open, presses them around his credit card and then forces his hand to give the card to the cashier? All the while the man is screaming and protesting? ‘

          Quite possible, to spend money under duress. The husband can be pressured into parting with his money when the wife may use blackmail, threaten him with dire consequences if he doesn’t (like a false accusation of domestic violence and reporting it to the police; it doesn’t matter if the complaint is formally lodged or not – the impending loss of face acts as a strong factor), a suicide threat or how she would make life a living hell for him & his family and badmouth them to the neighbors and other outsiders.

          Doesn’t sound funny to me.

        • @Raghav

          Blackmail amounts to Criminal Intimidation under Section 503 IPC. Spouses have no immunity against such a charge, which is, in any case, not nearly as serious as sexual assault.

        • @Raghav

          Badmouthing someone to the neighbors etc is not a crime. If she threatens to do that, the guy should realize he made a mistake and just apply for a divorce. But people pressurize each other all the time. There’s nothing wrong with it. My wife pressurizes me to pick a certain shirt color. That doesn’t mean she’s “forced” me. It just means I choose to do it and make her happy.

          It’s still my choice.

          Falsely accusing someone of a crime is itself a crime. There is no need to create a new category of “financial rape”. That’s absurd.

      • So I have a consensual sex with my wife today and tomorrow we have a bitter fight (not physical) on some other long standing issues say financial etc..that becomes uncompromiseable and I want to leave her.
        Now you wanna give the woman another tool to blackmail the husband to stay on the marriage and take abuses forever?
        It is difficult to classify unconsensual sex within marriage as rape as most often rape (sexual assault) carries injuries and bruises. In that case it can be treated as sexual assault and the perpetrator (husband) should be punished.
        I am in no way defending unconsensual sex within marriage. But the only legal remedy I see for this menace is the woman leaving the marriage pointing unconcensual sex as the reason.

        • Since rape is a very serious criminal offense, the burden of proof must still be on the wife. I am sure that most of us here are not in favor of shifting that burden of proof to the accused person.

          Even in countries where marital rape is treated as rape, it can be nearly impossible to prove that such an offense was actually perpetrated.

          Regardless of this face, marital rape MUST be treated as the crime that it is. Simply allowing for an easy divorce is not a solution, any more than allowing an ordinary rape victim to leave the crime scene unharmed is a solution. Society, and the law, must recognize that women people can be raped by their partners too, and in failing to do so, they perpetrate a grave injustice.

        • We’re talking about two separate things. You’re referring to proving whether or not something happened. We’re talking about criminalizing it in the first place. As of now, even if a man admits that he forced his wife to have sex he cannot be charged. First make the law. Let people know what is legal or illegal. Then we’ll think about the evidence.

          And rape is proved just like every other case of rape is proved. It depends on the circumstances.

        • Just wanted to add a voice of support to what Praveen and Bhagwad have said. I totally agree. The burden of proof could be on the wife (and it will be difficult to prove) but the point is that it should be criminalised firstly. Tell people that raping your wife is not acceptable. How the wife proves it is another matter.

        • Yes. If for whatever reason, including a fight yesterday, your wife does not want to have sex with you, she should be entirely free to say “no”. This has nothing to do with blackmail, since sex is not something you are entitled to.

          Of course if a husband desires sex, and the wife shows no interest in it over time, then it’s possible that this will lead to divorce. So be it. There’s nothing special about this, divorce can happen as a result of disagreement over *any* topic that is important to atleast one of the partners.

          Your opinions on rape are naive. The rapes of the “some violent stranger assaults you in a park” variety are actually a small fraction of rapes. Most rapes happen between people who know oneanother, and in the privacy of someones home. Violence isn’t nearly as common as you believe, threaths, blackmail or other forms of coersion typically leave no physical marks on a victim.

          It’s true that this often makes rape hard to prove in court. This is however completely unrelated to if the involved where married or not.

      • What form the consent take? Does it require an explicit verbal yes? Is the consent taken by pressurizing a consent? These are not hypothetical but real important questions.

        • How come you’re asking these questions only for marital rape? The issue of consent has been well defined for years. Just because a woman is married doesn’t mean that anything changes.

        • According to the new law on sexual assault:

          Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act:

          Provided that, a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

        • That is true. Women often does not see other social options but to stay married. Now, some women have other options, but many others simply do not. It depends on the capability of the women to acquire financial independence, which again depends on the education and options within the direct environment, whether a women can at all survive on her own out there. Consent must be in many cases given to avoid beating and rape since the society is offering no escape but to death…
          And this comment about ‘her spending HIS money’ – Man, you need a reality check. You comparing that with rape comes from the philosophy you were exposed to that the woman is lesser then man, therefore his property. It considers that value of the woman doesn’t extent her reproductive and serving potential and that she has no right to have need as she should see herself as a serving tool for the man’s prospects. She is not given even a theoretical chance to become financially independent. She is forced to do what others want from her and in the end she is spending ‘his’ money…
          What you are expressing here is called misogyny. “Woman is evil, she wants to suck the man out of his money, therefore man has a right to violate her.”
          Same philosophy mixes money, honor, virginity, religious sentiments and other abstract virtues with human rights over their own bodies. Same beliefs are teaching you that body is not important; especially if it’s woman’s body.
          Spending money is a habit that you develop once you have money to spend, which again means that you are not a slave. So don’t compare yourself with those who don’t even have enough to buy themselves out of slavery.
          Money is not a part of your body. It’s not you. If someone takes away your money only your vanity can hurt.
          There are, of course, women (as well as there are men) who tend to financially abuse their partners. We are all product of the social pathology we were exposed to. If you think what these girls have been witnessing ever since they remember, you must recognize that they have being watching women being abused in all possible ways. You must suspect as well that they have experienced abuse themselves, if nothing at least verbal abuse or talking in down-putting way related to their gender (which I think every woman has to experience here and in many, many other places during their young age) together with many other disadvantages of being a woman in India like for instance is that the man will be served first although he came later and so on…
          One of the possible answers of person’s psyche to that (without the intention to defend ANY abusive behavior) is to conclude: “I better take advantage where I can and take what I can for myself because the man will anyway be abusing me and all the social advantages that are available for him in an abundance.”
          A definition to remind you:
          Rape is imposing sexual interaction on someone who doesn’t have a possibility to refuse.
          It involves PHYSICAL violence.
          Physical violence is an ultimate act of humiliating a person.
          Although the vanity can hurt, it is only your projection that has been injured. Imagine physical and emotional pain being inflicted on you every day.

        • Many comments are being made along the lines of “how do you prove it?” or “what does consent mean?” these are good questions, and interesting to discuss.

          But they are completely irrelevant for the discussion here, which is whether or not to treat marital rape like any other rape.

          Yes, it’s sometimes hard to prove rape. This is true whether the involved where married or not.

          Yes, in rare cases the situation can be so murky that it’s not clear if consent was given or not, or it’s not clear if the perpetrator reasonably *believed* consent was given or not. This is however *also* true whether the involved where married or not.

          The questions are ok, but the answers should not change based on marriage.

          What counts as consent from a stranger, counts as consent from a wife or husband. What counts as proof of rape-by-stranger, counts as proof of rape by husband or wife. There should really be no difference at all.

        • Bhagwad: The state of being married actually mean nothing for my queries. They apply equally to rape committed by romantic partners, especially in a domestic romantic relationship, where sex is a norm, so that confusion can easily arise regarding the meaning of consent.

          Praveen: Thanks for the legal definition, which looks pretty fair, and seems to be detailed with the intentional purpose of handling each case according to the circumstances. However, that does not stop one from discussing the issue of consent anyway.

          Some people are claiming that the issue of consent is exactly same as in case of strangers. I do not think it is so, it really is more tricky in case of partners who have a history of sexual relationship. Some one mentioned the “haato jee” attitude, well it does exists. There are women who expect their partners to be aggressive, and would actually resent them if he stopped at every no. There are couples who make up via aggressive sex. Consider this, in a previous fight the man has successfully seduced the wife into reconciliation. Suppose he tries again and fails miserably. As it was mentioned by IHM that any sexual act without consent by husband is rape, will this as well constitute a rape? Haven’t we all thought at times during sex that what the hell am I doing ? A wife going on a sleeping husband is not any uncommon situation either. Should a wife go to jail for it?

        • Raghav,

          ‘Reasonable belief of consent’ is a valid legal defense against a sexual assault charge in Indian law. Such a defense would protect the protagonists in all the scenarios that you have mentioned.

  2. Isn’t there something about conjugal rights in the Indian legal system? A husband’s right to sexual act with his wife. Now I don’t know whether there is a vice versa there. I think a whole review of the entire legal system is crucial. The laws and rights are outdated in our syste,

    • when I was applying for divorce , my lawyer told me that he can force ( send police and arrest him from different city) my husband to come and stay with me as its my conjugal right . we had mutual divorce , so I just asked him to find a better lawyer . So , i guess both parties have conjugal rights

    • I am not a lawyer, but I am told: Conjugal rights is not about a husband’s right to have sex with his wife. It is dealt with in Sec 9 of the Hindu Marriage Act (1955) and Sec 32 of the Indian Divorce Act (1869) . Wording is like “When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights…” But yes, I have heard of women being forced to go back to abusive husbands – probably they could not pay for lawyers, or their lawyers were bad…

  3. I would again say that though there is a pressing need for change in societal attitudes and laws the change has to also begin in homes and families,many of us turn a blind eye to sexual violence between a couple in homes and extended families saying” yeh to mian-biwi ka aapas ka maamla hai”( this is a private matter of the couple).When a family does this they justify rape by a husband.

    Also I believe a lot of wives are brought up in a way that they are made to believe that they have to sexually gratify their husbands to qualify as a good wife,no matter how outrageous/hurtful/forceful his demands are.A lot of cases here have not sought a legal recourse because the difficulty of providing evidence of sexual brutality in a marriage and the refusal of families to acknowledge marital rape makes them only seek distance or separation from the husband.

    patriarchy as a system doesn’t only thrive on men exercising power over women but also largely by this conspiracy of silence into which women and families are forced.

  4. This stance is definitely tied to the idea of a husband owning his wife. And though I have seen people argue that even the wife ‘owns’ the husband, the simple fact is that within the context of the Indian society, it is a laughable notion.

    I have also seen people get very upset at the idea that they might need the consent of the wife…because y’know, in case it is an argument and someone else in the family hears, imagine how embarrassing it’d be for the man. Because, obviously, a man suffering some embarrassment is a fate much worse than a woman being forced to submit to sex.

    It is also tied to the idea of marriage [and procreation] being the sole purpose of a woman’s life. Sometime last month someone had forwarded a link to me – an essay examining the link between marriageability and rape sentencing in India: Chastity, Virginity, Marriageability and Rape Sentencing. The linkages are interesting, to say the least.

    And while I will not deny some of the points raised by those who oppose any strict legislation against marital rape – mainly, that of the potential of misuse – the answer lies in a stringent burden of proof, not in dismissing the idea as a marginal issue. For there is nothing marginal about acknowledging the principle that a woman is not someone else’s property, not even her husband’s.

    And for all the statements about protecting the institution of marriage, the only thing they are protecting is their own political future.

    • You know, every law has the potential to be misused.
      It is a misogynist mindset that refuses to accept the idea that marital rape can exist, and this mindset is opposed to any efforts that begin exploring the feasibility of such a law. The ‘it will be misused’ argument is just as excuse.

      A properly drafted law , worked on by highly trained legal experts should ideally not be open to misuse.

      Also, I’d just like to point out that the existing definition of rape *could* have been applied to marital rape- had it not been for the tiny fact that it specifically states that A MAN CANNOT RAPE HIS WIFE.
      It is that clause, which makes it an act of deliberate commission, not omission.
      Remove that clause, and you do not even need a brand new law.
      I do hope our resident legal eagle aka Praveen, weighs in on this :)

      • That’s true. Generally simpler laws, with less excpetions and exceptions to exceptions are less prone to abuse. India already has a law against rape. That law *already* defines the punishments, defines what “consent” means, and all the other nitty-bitty-details. That law is sufficient. All they need to do is remove the specific exception for married people.

  5. IHM,
    I think this will open up a Pandora’s Box for our society. Right now, the only pillar that differentiates us from being ‘westernized’ is the so-called sanctity of this institute. Adding this law will crumble this last pillar.
    You ask who benefits? The blind guardians of our culture.

  6. There’s two ideas behind this stupidity. One is the idea of women as property. A married woman is seen as belonging to the husband, along with her sexuality, thus there’s no way for him to take what is already his. You see people sometimes arguing that women “owe” their virginity to their future husbands, that if they have sex before marrying they are in effect “stealing” from him.

    The other misguided idea is a naive and incomplete understanding of “consent”. The assumption is that if you agree to marry a person, this means you also agree to have sex with that person. This much is true for most. I do think most people, when they marry, also want to have sex with the person they marry. But not in all situations and at all times, and *that* is the major point that some don’t grasp.

    Even if I said yes yesterday, and very likely will say yes a thousand times more from tomorrow onwards, it does not mean that I must say yes *now*. There’s many reasons I might not feel like having sex today, even if the person asking is someone I have a sexual relationship to, and someone I want to have sex with again in the future. Not everyone understands this. Some thing, if you voluntarily consented to having a sexual relationship with this person, then surely it can’t be rape when that person has sex with you.

  7. ” Get them married early and there will be no rapes” Said khaps and some others. It is as if tie them up to rape one person legally in order to stop the illegal rape! Is woman still a commodity?

    Where getting the man with a rapist mindset married is the solution to curb rapes, one can only say that marital rape is no crime.

  8. Madam, some of the recent articles and the comments gave me some answers to why the women’s groups hate men so much. They project themselves as intellectuals and fighting for rights of women but they are actually becoming very very unjust, biased, and dishonest. Let me explain why I feel so.
    A person working in a orthopedic clinic interacts daily with people with broken bones .If he starts thinking that the all the living population’s bones are broken, it is an unjust, biased and dishonest analysis.
    A jailor interacts daily with convicted criminals and crooks (and the jails are crowded nowadays).If he starts believing that there are no normal people on this earth and everybody is a criminal, it is an unjust, biased and dishonest belief.
    Similarly the women’s groups interacts daily with women who are victimized and need help ( I appreciate this service).But the problem starts now: These women’s groups now believe that all men are rascals and monsters and deserve punishment. This belief is unjust, biased and dishonest and dangerous too as they are now dictating laws with this mindset.
    A crime is a crime and the wrong doer should be punished. No sensible person can oppose this.In case of marital rape,women can seek relief/punishment/divorce under existing laws.There are at present enough laws to hang husbands and make their life miserable.
    But the problem is with sweeping exaggeration that all women are suffering victims and all men are criminal. There is no effort to properly diagnose and solve the problem. The effort is to make it a man vs women issue.
    The Fear hence the apprehension:
    Now coming to this particular issue of marital rape law. There is fear among Men. The experience of false 498a cases. There is no law for husband’s protection. The law permits blackmail and exploitation from wife .The fear of always being at the mercy of wife and at gun point. Why?
    The summary of various articles from you and others, TV talk shows and interview of Justice Verma and others is:
    • Specific consent of the woman each time is must. The relationship of the man with the woman is irrelevant.
    • There is nothing like implied consent. Sex by a non husband with consent is OK; sex by husband without specific consent is not OK.
    • To determine sexual assault, there should not be any difference in treatment who the offender is . ie. Husband or non husband, it makes no difference.
    • Sexual assault definition includes even touching among other things.
    • Hence, even if husband touches the wife without permission, it can be treated as sexual assault. Silence of wife does not mean consent. The consent should be specific.
    • Proof of offence: if wife accuses sexual assault against the husband, her word is final. It is for the husband to prove that he is innocent or that there was consent.
    The issue is projected as if Husbands are looters and cause only pain to wife.
    Since it is demanded that it is the husband who has to prove consent, why doesn’t the women’s group explain how they should prove this? In absence of this guidance, they are just sitting ducks. The wife can just send the husbands to jail (the demand is for life term) and enjoy their property
    You can enjoy this fear as a measurement of your success. or think sincerely if this fear will indeed help women
    Who will benefit from criminalising marital rape? CERTAINLY NOT the likes of poor women quoted above.The women from poor families cannot afford to send their husbands to prison.
    The users of this law will be the smart,well off,intelligent women who will be using this law to harass/extort/take revenge from their husbands in case of any disputes.
    The major beneficiaries will be lawyers , police (will fleece money from both sides) and womens groups (they will show case their success in terms of no. of divorces and no. of husbands in prison)

    • “These women’s groups now believe that all men are rascals and monsters and deserve punishment.”
      Unless you think that all husbands rape their wives, how does a law against marital rape imply that all men deserve punishment?

      “In case of marital rape,women can seek relief/punishment/divorce under existing laws.There are at present enough laws to hang husbands and make their life miserable.”
      If the law does not recognise rape within a marriage, how can women seek relief/punishment/divorce on the basis of marital rape? Are you suggesting that they should file false charges against the other provisions at their disposal?

      “Since it is demanded that it is the husband who has to prove consent, why doesn’t the women’s group explain how they should prove this?”
      Marital rape being a legal crime or not is a different discussion (albeit related) to how it should be proven in court. If you think that raping one’s spouse is wrong, then why protest against having a law against it? Instead, let’s talk about how it should be proven in a fair way. Why do you say this is the job of women’s groups? I thought you were against making this a man – woman issue.

      “The women from poor families cannot afford to send their husbands to prison.”
      I have known many maids who were the sole earners of the family and still put up with beatings from their jobless husbands. Social pressure plays a huge role, it’s not just down to financial dependance. A society that thinks it’s women are owned by their husband/ father will only produce more helpless women.

    • “Sex by a non husband with consent is OK; sex by husband without specific consent is not OK.”

      — and you think something is wrong with this statement??? why??
      take the word husband out of the picture and you have your answer.
      sex with consent is OK and sex without consent is not OK…
      plain and simple for both men and women.

      • Yes! Also, quite strange to say ‘sex by’, sex is ‘with’ and rape is ‘by’ precisely because it is without consent. There is a difference.

      • “Sex by a non husband with consent is OK; sex by husband without specific consent is not OK.”

        – and you think something is wrong with this statement??? why??

        Off course it is wrong:
        Instead will it not be proper to properly divorce the so called husband , for whom there is no consent and then enjoy with the person for whom there is consent.
        Is it not more simple and logical?

        • What you are talking about is adultery/cheating. But the original comment was “There is nothing like implied consent. Sex by a non husband with consent is OK; sex by husband without specific consent is not OK.” Meaning that being married to someone does not give you the right to have sex with them whenever you want to, you must have your spouse’s consent. Also that if you are not married to your partner, having sex with them with consent is not a crime. That is all.

        • Sure that’s step 2. Step 1 after bei g forced to endure unwanted sex is punish the person who forced it on you ..

          Forced sex is cause for divorce and punishment for suffering caused. You play. You pay and then you will also get divorce

    • 1.I don’t think any woman’s group is asking that husbands ask their wives specifically each time for consent. What I personally, would like, is for a law against forced sex (i.e inspite of wife saying no). It does not even have to be a new law- just removal of a clause from the existing rape law , OR as Praveen pointed out above, filing any grievances under the Domestic Violence law.
      2. The proof of offence, as always , lies on the accusing party, the wife. The law states that the accused is innocent until otherwise proved, and that should not change.
      3.The 498a law was to help curb the menace of dowry in our society. It has failed miserably. Dowry is still a social problem. What will you achieve by blaming Indian women for the misuse of 498a? Your ire should be directed towards the people who drafted the law and it’s loopholes, not against the people who it was meant to protect, most of whom remain unprotected.
      Yes, sometimes, this law is misused, just like innumerable laws on assault, free speech and suchlike. The solution lies in re-writing the law, not using it as an excuse to stop making new laws.

    • “A person working in a orthopedic clinic interacts daily with people with broken bones.”
      Many women and men who discuss these issues don’t ‘work in women’s groups’. They see an injustice (the most despicable kind) and want to correct it. It may not have even happened to them directly. I’ve never had to deal with this. Yet it bothers me. That’s what makes us thinking humans. How convenient to call this man-hating. By this logic, we should not prosecute child molesters because that would be adult-hating and let thieves walk away because that would be rich-hating.
      And please stop using the phrase, ‘women’s groups’. There are decent, logical men who support this.

      “These women’s groups now believe that all men are rascals and monsters and deserve punishment. ”
      If you are neither a rascal nor a monster, you have nothing to worry about. In fact, you should be working against these rascals and monsters too. If you look at our country’s rape and other crimes against women statistics (cold hard numbers – not your opinion or mine), the numbers are horrific.

      “But the problem is with sweeping exaggeration that all women are suffering victims and all men are criminal.”
      Again please look at the stats. Not all men victimize women. But there is a basis for this generalization. As a country and a culture, we do victimize our women in massive numbers.

      “The women from poor families cannot afford to send their husbands to prison.”
      So you’re saying a woman must endure rape, beatings (if she protests) and other physical assaults, because she’s poor and is dependent for her livelihood on this monster? She should not send her husband to prison because she’s poor – so let’s not make a law that criminalizes her husband’s criminal behavior – great basis for framing laws.

      “The users of this law will be the smart,well off,intelligent women who will be using this law to harass/extort/take revenge from their husbands in case of any disputes.”
      On the contrary. Women such as these have a much better chance of marrying a sensible guy of their choice, who treats them as an equal. They will have less need for this law than poor, uneducated women. If you are equating intelligent/smart to being manipulative, then I give up, can’t help you there.

    • “Hence, even if husband touches the wife without permission, it can be treated as sexual assault.”

      This is a straw-man and factually untrue. The law on sexual assault does not require explicit consent for something to not be assault. It just requires that a *reasonable* belief of consent.

      If you’re a normal couple, and enjoy normal levels of physical intimacy, then it’s reasonable to assume that your husband or wife wouldn’t mind getting hugged, even if he didn’t explicitly say so. Furthermore, if he smiles and hugs you back, it’s *reasonable* to assume that the same action tomorrow, would be welcome. This too, is completely unrelated to marriage. I’ve got ordinary friends that I hug when I meet them. There’s zero risk that any of them could get me convicted of sexual assault because it’s actually *reasonable* for me to assume that the hugs are welcome, as long as every indication from their side supports this belief.

      The same is true even for rape. Consent can be given in more ways than words. Most commonly, consent is communicated by being an active participant.

  9. “The government on Monday justified its decision not to include marital rape as a sexual offence in the Criminal Law Amendment Ordinance, 2013, saying that this could weaken the institution of marriage.”

    That’s the best argument against getting married I have ever heard.

  10. This post reminded me of something, IHM. I had a second cousin much older than me, who is no more now. He was a schizophrenic, a violent one, who used to be heavily sedated at most times. This was around 25 years ago. Among the few memories I have of him (I was a tween, and we visited these relations maybe once a year during school vacations), there was this of the family discussing that they should maybe get him married, and that could probably ‘cure’ his condition, especially the violence. Fortunately, someone with better sense convinced them not to do that. He passed away a decade or so ago, but I shudder to think of any poor soul who might have been picked upon to be married to him.

    • I have a relative too, who is suffers from severe schizophrenia. He was slyly married to a woman (this happened 20 years ago), who discovered his condition the day of the wedding.
      Understandably, she felt extremely cheated and helpless. Not being too well educated, she’s been stuck in the marriage since then. I’ve literally watched her transform into a gentle person into a perpetually angry one.
      I feel ashamed that my family inflicted such cruelty with lies on someone innocent.

  11. Who is the government to try and protect ‘marriage’? I think their constitutional mandate is to first and foremost protect the citizens of this country. I don’t think they have the right to protect some broad social construct like ‘marriage’ above the safety of citizens!

    If they think it’s their job to protect ‘marriage’, why do child marriage laws, domestic violence laws and dowry laws operate within a marital context? These also ‘weaken’ the institution of traditional marriage in India (just as much as rape laws would). This excuse from the government is (as usual) hypocritical and should be challenged.

    I think it comes down to two things:
    1) Treating women’s sexuality as something different (lesser) than men’s. We are made to believe that women always say ‘hato naa’ and no to their husbands when they initiate intimacy. That a man always has to exert some force and persuasion to get sex from his wife and she is never horny. Sex is her duty, not her desire and consent is forever questionable. ‘These’ people probably think that ‘marital rape’ is actually the same as ‘marital sex’.

    2) A poor understanding of rape itself. Treating the woman as a property and not a person. Rape becomes a crime against the woman’s honour or of the man who owns her. It is seen as an ‘insult’ to women, not a straight up crime. This created confusions like rape is the same as sex outside marriage. The idea that rape has primarily to do with the woman’s consent and not her marital/ virginal status simply doesn’t occur to people.

    Will it be hard to prove rape in a marriage? Maybe. So what? Do we abandon all crimes that are hard to prove?

    Who benefits from protecting rape within a marriage? Rapists and their families. Once again, we bump into the rape culture that encourages (not just condones) rape knowingly and willingly. It’s important to keep men feeling superior and women in line. Never mind that men are not animals lacking self control, that’s what our culture needs them to be.

    • Absolutely.

      I made precisely the same point below, but you beat me to it.

      The government cannot function as some kind of self-appointed guardian of marriage. That is not, and should never be, their job.

    • “Who is the government to try and protect ‘marriage’? I think their constitutional mandate is to first and foremost protect the citizens of this country.”
      Excellent point!

  12. A single woman is a ‘paraya dhan’ and a married woman is her husband’s property. That is the real essence of marriage, as per our law makers. It all boils down to patriarchy once again. The bearers of the law won’t let this powerful weapon go away from their hands so soon because, let us face it, they are one of them who practice it, in and out of their own homes.

  13. You make valid arguments, but quite apart from all of that, perhaps we need to question if it is at all the government’s business to defend against the ‘weakening’ of the institution of marriage.

    Preserving social institutions (in accordance with whatever ridiculous standards they find correct) is most certainly not part of the government’s mandate. The government has a much greater duty towards protecting the basic human rights of individuals.

    In making this statement, the government essentially argues that the violation of a human being’s dignity and body is trivial when held against a possible weakening of traditional social structures, that defending against the latter is more important than preventing the former, that the abstract, vaguely defined, ‘institution’ of marriage is more important and worthy of protection than the life and dignity of millions of women. This is an argument truly framed in terms of the sociology of oppression. Indeed, I’ve rarely seen arguments more simultaneously repulsive and insensitive, but I also confess that I did not expect anything better from our elected representatives.

    The only silver lining here is that we now know, at least, that our legislature is truly representative of our society, for the attitudes that their ‘clarification’ reflects, are merely a microcosm of the daily prejudices and injustices that women must face in modern India.

    • “our legislature is truly representative of our society”

      Very true and very scary. The state’s attitudes can only progress at the rate at which the majority progresses.. and I fear that the two can slow each other down in a vicious cycle.

  14. How utterly sad that our legal system refuses to see marital rape as an offence. This is going to make victims hold themselves back from reporting such crimes even more.

    Its one thing to demand for stringent inclusion of laws and their implementation, but if the victims are going to remain living through the atrocities without reporting or standing up against their abusers, then I fear the laws may not be of as much value as they should be.

    I mean, those women who take in abuse of any kind at the hands of their husbands, need to come out of the conditioning that once married they are ‘naturally expected’ to cover up for their spouses’ crimes, give in to the brutalities, and discard their own desires. They need to realize that that have every right to report.

    Recently I got to know that an aunt of mine had been living through such a relationship for years where her husband would abuse her because she wouldn’t consent to have sex with him. What appalled me even more was how despite that she continued living with him, and still does. Although,now she shuttles her time between her two married sons who are based in a different city..yet she goes back to this man, who is jobless BTW, takes care of him and keeps it going. So can we say that this marriage is ‘strong’? What stops her from going against him? Is it because she loves him still, or is it because of the stigma attached to marital rape or societal pressure, the conditioning, or a mix of everything…no clue. What I do know is that such judicial decisions and justifications are going to make those sufferers even more hesitant to speak out.

  15. A very quick comment since I am short of time right now:
    Two concerns. First, What exactly will constitute a rape in a marital relationship? Something involving violence? If so, wouldn’t it be legally different from usual definition of rape? If not, then what exactly will be the definition?

    Secondly, in cases of repeated rapes, is not it the responsibility of the wife to move away, or seek protection, the moment she is raped for the first time?

    • When wife doesn’t want to have sex , and she says so ..and husband still goes ahead and have sex with her .this is marital rape .There can or cannot be physical violence. For any Indian wife there can be many reasons for not moving out of repeated rapes . First is that she herself like 90 % other people around her even recognize marital rape as crime or rape .
      First step is to recognize and acknowledge Marital rape as crime , by law and by people .

        • Not necessarily.

          An act of sexual intercourse can also be deemed non-consensual if one of the protagonists was, at the time of the act, mentally incapable of granting meaningful consent. In most jurisdictions, having sex with sleeping, unconscious, or very intoxicated individuals is therefore considered rape, and India is not an exception.

    • Secondly, in cases of repeated rapes, is not it the responsibility of the wife to move away, or seek protection, the moment she is raped for the first time?

      No, it is the responsibility of the husband to stop raping his wife. The manner in which she chooses to respond to this is irrelevant to the fact of occurrence of the rape.

      There can be an infinity of reasons for the wife not wanting to move out and not being able to seek protection. She may not have the financial wherewithal to do so, she may fear the social stigma of raising such issues in public, she may feel that staying in the marriage is better for her children, she may fear further abuse, she may not have access to any support, she may not be aware of legal remedies to her situation, she may not know how to access those remedies or she may even be threatened into not doing anything… whatever the reasons may be, the victim of a crime has no obligation to move away, or seek protection, or perform any particular act after they have been victimized by another. Criminal liability rests solely on the perpetrator.

      On a related note, I wonder if you’d ask the same question of victims of domestic violence.

    • A bit hard for me to understand how rape can occur without direct physical force or violence or threat of violence. If you have been coerced into having sex, then you are just putting up with something probably as a transaction. Not that you are not abused, but hard to call it rape. This is my main problem, when a lot of other stuff , apart from brute physical force, is brought into definition of rape. BTW, my guess would be that as many wives coerce their husbands into unwilling sex, as the other way around, through threats, shaming and blackmail. So unless the law is completely gender neutral, when not involving brute force, it would be a farce.

      Praveen: I think I will take my comment back. It is certainly not the responsibility of the victim. However, my second question was precisely related to the first one. A clear communication of non-consent and not just undesired sex as a transaction. I wouldn’t ask the same question of victims of domestic abuse and as much as the act can clearly be defined as rape, and hence a worst form of domestic abuse, I would certainly not ask it.

      • The prosecution is not required to prove that there was a clear communication of non-consent.

        In order to establish sexual assault, it is sufficient (and necessary) to show that:
        a) Sexual contact occurred between the defendant and the complainant; and
        b) Before the commencement of said sexual contact, there was NO communication of consent from the alleged victim.

        In the absence of video evidence, external witnesses and such (a rare luxury), it is nearly impossible to show that consent was not communicated, especially when the defendant alleges the opposite. Therefore, the prosecution will typically try to show that some form of non-consent was actively communicated to the defendant, which inductively satisfies the second point and thus establishes sexual assault.

  16. So basically when you get married you agree to be a sex machine forever ready to do it at any time of the day or night regardless of your mood and you lose the right to say “No”.

    Lots of people are asking “How will you prove it?” Well, how do you prove any crime of rape? If the victim fought back there will be signs of a struggle, injuries or whatever. The mere fact of the man being a husband is completely irrelevant to the crime.

    Also, as of now if a guy openly admits to raping his wife he cannot even be charged with the crime! Forget about having to prove it – even if the perpetrator admits it he cannot be touched. Make the law – let people know first what is acceptable and what isn’t.

    • How do you prove any crime of rape?? Signs of a struggle? Injuries? Really? What about a woman who is too stunned to react until the crime is over? Like a newly married wife who is just too shocked to react as her husband forces himself on her. Does that mean its her fault that she didn’t put up a physical fight? Please be reasonable.

        • So, if the victim is unable to fight back, she cannot claim to have been raped? Does that mean an unconscious woman cannot claim to have been raped? And what about the example I mentioned above? I am not debating the proof of crime in any rape case or a marital rape case. I am just pointing out your weird logic of the presence of signs of a struggle as the proof of rape. Not every rape case is accompanied by signs of struggle or violence. Absence of such signs does not mean rape never occurred. Do you get it now?

      • @N K

        I don’t understand what your objection is. I never made the claim that all rapes involve direct physical violence. So why are you intent on disproving something I never asserted in the first place?

  17. We Indians have a skewed view of what a marriage is? I’d suggest to both men and women refrain from marriage till you find a non judgemental intelligent soul who prefers to treat people as human beings .

    As for those arguments about how women can trap men and get them in trouble, of course there are idiots both among men and women , of course women are as capable of deceit as men are . so make laws to protect men…
    what does that have to do with making marital rape a crime. i’m not talking about proof , cases etc., simply saying abusing your wife and forcing her to have sex without her consent is a crime… i simply dont understand why people would object to that.

    • “I’d suggest to both men and women refrain from marriage till you find a non judgemental intelligent soul who prefers to treat people as human beings.”

      You couldn’t have put it better. I keep keep KEEP harping on this, to the point of sounding like a stuck record.

  18. NO BODY IN THEIR RIGHT SENSES WILL DENY THAT MARITAL RAPE IS WRONG. Problem is in making a new law as demanded . THE DEMAND FROM WOMEN’S GROUP IS:
    1) There should be no difference in treating sexual assault by husband/non husband. Punishment should be same.i.e life imprisonment.
    2) The burden of proof of innocence is on husband. Wife’s testimonial is enough to arrest the husband .( LOGIC IS -INDIAN WOMEN DO NOT TELL LIES!)
    3)The husband should be giving proof that he has obtained consent. Silence does not mean consent !the consent should be specific! Now how should he Prove? How should he save himself from false charges
    -4) IF THE HUSBAND HAVE TO PROVE CONSENT,DO THEY RECOMMEND SOME CONSENT FORM , TO GET IT SIGNED FROM WIFE BEFORE EACH ACT OF CONSENT SEX…..NEXT PROBABLY THEY WOULD WANT IT TO WITNESSED AND ALSO BE REGISTERED SO AS TO ENSURE THAT THE CONSENT IS NOT OBTAINED UNDER DURESS….

    WHY A NEW LAW IS NOT REQUIRED:
    1)in case of rape with violence by husband, she can report about the violence ,punish the husband and also seek divorce.(there is law for violence against wife by husband)
    2) There is indeed a difference between husband and a stranger. For example if a stranger holds a woman’s hand without permission, it is punishable. Is it same in case of husband? Will you punish a husband too saying he did not take prior permission and touched the wife ? . Will you call it marital tease? If the wife does not want him to touch, she can protest, and if he is not understanding, she can leave this man. BUT can you have a new law again for this too called marital touch law.

    • There should be no difference in treating sexual assault by husband/non husband. Punishment should be same.i.e life imprisonment.

      Life imprisonment is the severest possible penalty for rape. If marital rape is made an offense, the sentencing for it will most likely be graded just like ‘ordinary’ rape.

      2) The burden of proof of innocence is on husband. Wife’s testimonial is enough to arrest the husband

      3) The husband should be giving proof that he has obtained consent

      No one on this forum has suggested any such thing.

      in case of rape with violence by husband, she can report about the violence ,punish the husband and also seek divorce.(there is law for violence against wife by husband)

      This is like saying that a law against murder is not required, because there is already a law against grievous bodily harm.

      Marital rape is not the same thing as domestic violence. It is a different (more severe) crime, and should be treated accordingly.

      There is indeed a difference between husband and a stranger. For example if a stranger holds a woman’s hand without permission, it is punishable. Is it same in case of husband? Will you punish a husband too saying he did not take prior permission and touched the wife ? . Will you call it marital tease? If the wife does not want him to touch, she can protest, and if he is not understanding, she can leave this man. BUT can you have a new law again for this too called marital touch law.

      Holding a woman’s hand without permission is not punishable; harassing her is.

      If a stranger has a legitimate reason to hold a woman’s hand, no one will prosecute him for it. Prosecution is possible only when the hand-holding is perceived by the woman to be an act of sexual harassment. When a husband does the same thing, it is very unlikely to be perceived as harassment.

      The difference is not one of marital status, but rather of intention; a husband who holds his wife’s hand is probably doing so without any malicious intentions.
      The same cannot be said of a random stranger.

      Even so, in theory, a woman is free to try and claim that she was sexually harassed by her husband. There is no law stopping her from doing this, although such a case would probably be thrown out of court rather quickly.

      Crimes such as rape, assault and murder are a very different matter. Rape, like bodily assault, is an act of violence. When a person is raped, there is no ambiguity in the intentions of the perpetrator. Unlike holding your wife’s hand, it cannot possibly be called an ‘innocent’ act. Malicious and abhorrent in the extreme, it is a grievous assault upon a person’s body and dignity, and causes immense trauma to the victim.

      Consequently, it should not matter if the perpetrator of a rape is a stranger or someone well-known to the victim. The marital status of a rapist cannot be seen as an exonerating factor; to the contrary, it indicates an even worse betrayal of trust. Marital rape is rape, and must be treated accordingly.

      • Exactly!

        I don’t understand why someone would object to a law against something they are declaring as wrong/ criminal! No one in this forum has said that the husband should be guilty until proven innocent. So why use this argument to say that there should be no law at all?

        Besides,

        “1)in case of rape with violence by husband, she can report about the violence ,punish the husband and also seek divorce.(there is law for violence against wife by husband)”

        > So what if there are no violent marks? Do you realise that the age of consent to sex within marriage in India (for girls) is 16? If a 16 year old was forcibly married off to a 54 year old and he raped her without leaving marks, say by drugging her, as per your recommendations, this would not be rape. Sadly, in the current Indian system also, this is not rape.

        He might be charged with something else for marrying an underage girl, but she may not even have the freedom to report him for that. Besides if there is no law against marital rape, she may think or be told that she must submit to being raped by him. Currently, it is his ‘right’ to rape her, so why should she complain? In the absence of laws saying that marital rape is an offence, we are saying that as long she doesn’t have marks of physical violence, it is ok that he raped her.

        I’m all for the burden of proof being on the wife and the husband being innocent until proven guilty, but we must declare that a man CANNOT rape his wife with impunity by amending this law. It would be hypocrisy to disagree with this despite saying yourself that raping one’s partner is wrong.

        • @carvaka

          There’s nothing wrong in protecting the integrity of an individual in marriage but who will have the final word in case of this law is implemented.
          Obviously, the wife even if it is a wrongful allegation made by her on her innocent husband.
          Well, people might say that the husband will get a chance of fair trial so what’s the problem but why should he be even wrongfully accused in the first place.
          From the very first time the police comes knocking at the door or expected to arrive at the court, it can be quite a traumatic experience for him (if he innocent) and his family – it can destroy lives, honour, respect everything and he & his family (if at all of them are able survive such a terrible ordeal) would have to undergo such torture when the first time such a blame is put on him.

          If he is proved innocent (& he really is) in the court of law, how does the system give all those precious days of life back to him & his family which are now lost forever?

          Is there a compensation that he can demand is such an instance and would monetary compensation be enough?

          And, finally, the women who are proven guilty of making such false allegations would be dealt with severely and would they now receive the same (or even more intense) punishment that they demanded (under this new law) for their wrongfully accused husbands?
          I think such women (found guilty of such a crime) should be dealt with severely so that it acts as a strong deterrent and only genuine cases are reported to the police/court.

          Some people said that women will still find it difficult to use such a law in India (and so don’t even talk about its misuse) because of the shame it can bring upon them but about those shameless women who do & can misuse such laws (wherein the wife would have the final word; even if it the burden of proof falls on her)

          If you say that every law is subject to misuse, (and so it doesn’t imply that a new law shouldn’t passed) then provisions need to be made in case of this law to safeguard the interest of the husband too in case he is wrongfully accused by wife with the mere intention of settling her personal scores against him/his family.

        • @ Raghav,

          I have rarely seen arguments as prejudiced and irrational as this one. Why do we have any laws then? An innocent person could be charged with ANY law and the recourse they have is to get a fair trial. They can also sue other for defamation or whatever. But we cannot just not make laws to avoid bothering innocent people. What a bizarre suggestion! “Let’s protect criminals charged with a crime because being questioned by the police is ‘traumatic. Never mind that they might actually be guilty of that crime.. the victim’s trauma is immaterial because she is a woman.” How incredibly daft!

          “Obviously, the wife even if it is a wrongful allegation made by her on her innocent husband.”

          Have you bothered reading the comments on this page? Can you show me even one that says the burden of proof should be on the husband?

          “Well, people might say that the husband will get a chance of fair trial so what’s the problem but why should he be even wrongfully accused in the first place.”

          Well anyone can be wrongly accused of anything.. it’s up to the police to file the complaint and up to the courts to entertain the case or not. Why is this only an issue in case of marital rape?

          “From the very first time the police comes knocking at the door or expected to arrive at the court, it can be quite a traumatic experience for him”

          What? It is the same for rapists who rape other woman. They could be wrongly charged too. So should we do away with rape laws altogether? Perfect!

          “If you say that every law is subject to misuse, (and so it doesn’t imply that a new law shouldn’t passed) then provisions need to be made in case of this law to safeguard the interest of the husband too”

          If you understand that any law can be misused, then why just ask for provisions in this case? Why not for every law?

          “I think such women (found guilty of such a crime) should be dealt with severely so that it acts as a strong deterrent and only genuine cases are reported to the police/court.”

          I don’t see you asking for rapists to be dealt with severely. The judge can already fine/ punish the complainants for perversion of justice if it is clear that the complaint was malicious and false. Not all acquittals are due to false charges, many are due to shoddy evidence collection. Do you realise that the conviction case of regular (non marital) rape cases in India is 25%. Do you think the rest of the women are making false charges?

        • @ carvaka

          Oh really! What makes you think that I would be supporting criminals who commit such assaults on women. I didn’t feel the need to spell out the obvious because a large majority of people including me who would want the harshest punishment possible for such criminals.

          I simply said that women who make wrong accusations should be dealt with severely. I also said in my comment that the least that can be done in such cases is that the same punishment that the accused (the husbands) would get should be granted to the ones making false allegations (the wives)

          Provisions to make sure that all laws are not misused should certainly be incorporated but I didn’t discuss that issue here because I don’t want to digress from the main issue – ‘the biased law’ that is being discussed here.

          Since we already have a biased law (about domestic violence in a marriage ) which has been routinely abused & misused by many married women to their advantage here as proved the statistics (now, may be we should question the integrity of the Indian legal system/judiciary whenever it’s the accused husbands/their families who are proven innocent and not the other way around; isn’t it?) , shouldn’t that serve as an example to guide us and make sure that wrongs of the past are not repeated in future.

          It would be unwise not to learn from such mistakes of the past.

          I don’t have any problems with the implementation of such a law but interests & rights of men in marriage also need to be safeguarded through some provisions. This is because we talk about marriage being an equal relationship and yet, you feel that the wife should be powerful enough to write-off the husband’s destiny through one cruel stroke – her word against him which can be untrue.

          What about the husband? His only solace under such a biased law/system is contesting her claims later in a court. What kind of law is it that allows the man (if he is innocent) to be shamed within an instant of a malicious statement made by his wife?

          I am in no way implying that the husband can force himself on his wife but then how can a wife’s accusation be held to be true and the husband’s denial of the crime as untrue. The court proceedings would only follow later.

          This is about a marriage and equal rights in it.

          Should be reserve all the sympathy only for the women/wives but never for the husband/their families in such cases. I have seen many men’s families & lives being ruined and men have lost their families forever because of such wrong accusations aided and futher strengthened by biased laws.

          Can we bring back the lives of their parents who couldn’t bear the grief of having their innocent sons wrongfully accused by their wives by misusing such biased laws (only to be proved innocent afterwards but it was too late then).

          Isn’t that insensitivity?

          What’s wrong in asking if such a biased law is to be implemented, atleast there has to a process of speedy trial (which can take place on the same day or just the next day because dragging it would only aggravate the sufferings of innocent men & their families).

          Moreover, the women who are found guilty of making false allegations should not just be fined (is that all you can think of? – only a fine, after scarring the honor & completely ruining the lives of their husbands & their families) should be dealt with in the strictest possible manner by the law (though I wouldn’t recommend taking such women to the gallows for committing such grave crimes; I am quite generous).

        • @ Raghav,

          “‘the biased law’ that is being discussed here.”

          Can you point out where I have recommended that the law against marital rape should be biased and treat the husband guilty until proven innocent? Can you point out who here has said that the burden of proof should be on the man and not the woman?

          “I am in no way implying that the husband can force himself on his wife but then how can a wife’s accusation be held to be true and the husband’s denial of the crime as untrue. The court proceedings would only follow later.”

          Yes, the court of law is where all accused persons defend themselves. In any criminal allegation, it is the accused’s word against the accuser’s. Even in non-marital rape, the police complaint is filed based on the woman saying she was raped (and medical tests). It is not quashed if the accused simply says he didn’t rape her.. that decision is up to the court. By your logic, unless a rapist admits his own crime to the police, there will NEVER be any rape complaint filed at all.

          You entire comment is ridiculous and shows a total lack of understanding of the judicial procedures. I only agree with you on the point of quick trials. Not, as you recommend, to save the ‘honour of the accused’ (!!) but rather to provide justice.

        • @ carvaka

          Here the accused (as per the allegation of his wife) is not an outsider (and no, I am not implying that a spouse should be forgiven/shown mercy if he/she is guilty)
          and hence, the issue of equal rights in a marriage has to be given consideration.

          I have also stated that even if one chooses to bring in this law (at the expense of equal rights in marriage), special provisions have to be made to safeguard not just the husband’s honour but also the life of the man and lives of those (his family) related to him (minimizing the pain & trauma for the innocent).

          You clearly don’t agree that such provisions are needed for the sake of a man’s honour (you said that in your commen) but a man’s honour holds great importance in my eyes just like a woman’s,

          And, why do you feel the wife proven guilty of wrongfully accusing her husband (for reasons known to her – her extramarital affair or whatever) should get away easily with only with a fine and shouldn’t be dealt with severely?

          I can never bring myself to exhibit sympathy for a hardcore criminal nor would I like to ease the pain that should be inflicted on that criminal as part of the punishment because she (the wife in this case) rightly deserves it.

          Moreover, it might serve as an effective deterrent for those women who fancy playing with the law and with the lives of their innocent husbands.

        • @ Raghav,

          You either haven’t read my comment properly or you are purposely misquoting me.

          “You clearly don’t agree that such provisions are needed for the sake of a man’s honour (you said that in your commen)”

          Nowhere did I say that there should be no provisions. I said that quick trial should take place to ensure justice is delivered, whether it is to prove someone guilty or innocent.

          “And, why do you feel the wife proven guilty of wrongfully accusing her husband (for reasons known to her – her extramarital affair or whatever) should get away easily with only with a fine and shouldn’t be dealt with severely?”

          When did I say that? I said “The judge can already fine/ punish the complainants for perversion of justice”. Note the ‘fine/ punish’. Judges can already legally hold people accountable for perversion of justice. You also ignored that I said people can also already be sued for defamation. I am mentioning the provisions that already exist to address your concerns here, not saying that there should be none.

    • Sorry, but you completely fail to show why a husband should be treated any differently from a stranger.

      There is no such thing as “marital” rape. There is only rape.

    • Underlying your comments is the idea that women are filing false rape charges left right and centre, and that this will only increase if marital rape is made a crime. Do you feel like Indian society makes it easy for a woman to report a rape? That SHE will not be blamed and seen as tarnished? Because I certainly don’t. It is incredibly hard to report a crime like rape, especially since it supposedly brings shame on the family, and when most likely it won’t even be taken seriously by the police. This is real life, not some lousy film where some lady accuses the hero of rape on a whim to get revenge.

    • If marital rape is considered wrong then the offender must be punished. Regarding demands from women’s groups, it’s not mandatory for the govt to incorporate their every demand, govt can include marital rape in the category of rape and let the normal course of law take it’s course which includes “innocent until proven guilty”. And about the “a new law in not required” thing I wonder how can anyone who believes in justice come up or agree with those reasons.

      Does anybody else find it ironic that we call it marital RAPE yet don’t consider it as rape?

      • Raghav, responses to your comments –
        “Since we already have a biased law (about domestic violence in a marriage ) which has been routinely abused & misused by many married women to their advantage here as proved the statistics”
        – What statistics? Can you quote a report that proves that this law has been abused?

        “Women who make wrong accusations should be dealt with severely.”
        – What about rapists? A person who falsely accuses someone can be sued for defamation. A person who rapes someone needs to be punished severely.
        Those are 2 very different crimes.

        I don’t know what planet you’re living on. You need to wake up and smell the coffee. With most cases of domestic violence, the tendency is to NOT report due to fear induced by intimidation.

  19. Wives have been treated as chattel in several cultures; but they are changing. We should have had at least a good law in India, considering that our constitution was well thought out and modern; may be society has to keep pace with it.
    I hope our representatives in Parliament will be wise enough – a wistful thought?

  20. I have a question.Even if the law says marital rape is a
    Punishable offence, how many Indian wives are going to make use of that law? Where will they find support? Their parents, who are constantly telling them to ‘adjust’?

  21. “And what kind of Institution is Marriage seen as?”

    The Kind of Institution where people are locked up (sometimes even chained) against their will for their entire lives. That Kind of Institution.

  22. This line from the newspaper report was especially nuts:
    “………….. the government’s apprehensions that accusations of rape might be made in the wake of marital disputes, causing irreparable damage to the institution of marriage.”

    Irreparable damage has already been done to the institution of marriage – through dowry, bride burning, suppression, domestic violence, abuse, taking away a wife’s identity, her choices, her parenting rights, and treating a daughter as a burden/liability/commodity. We are more ruthless and businesslike in finding a life partner than the most bottom line oriented corporation. How can people talk about the ‘sanctity of marriage’, when we’re orchestrating such crass deals? When ordinary families are blowing their entire life’s savings on a 2 day wedding to please the groom’s side and get rid of their burdensome daughter? The Indian marriage system is in a highly damaged state.

    We have a long road to repairing this damage. Criminalizing marital rape is one small step on that road.

    • Very well said, Indian marriage institution is already damaged, tainted and socially sanctioned means of slavery for many many women who are trapped in it, criminalizing marital rape is a small step towards improving the institution.

  23. Praveen, thank you for all of your informed comments – all of them logical and well articulated. It was good to learn about the legal versus judicial aspects of this.

  24. It’s unjust to not consider marital rape as rape. Ensuring freedom, justice and equality among the citizens should be the priority of any govt. not preserving injustices in the name of traditions. Marital rapes should be treated and dealt with as other rape cases, and if people stop marrying because of that then so be it.

  25. Is marital rape something that only husbands do, and not wives, especially when we exclude physically pinning down kind of rapes? From the discussion above, the way two genders have been framed, it seems most people believe so, and hence, contrary to what they would claim, also believe that sex is something that men take and women give.

    Bhagvad and Praveen: Your replies have been quite useful. I will comment back shortly.

    • Women can do it too, although the overwhelming majority of victims (in the Indian scenario) do happen to be women.

      Since Section 375 IPC (which defines sexual assault) is now gender neutral, the removal of the exception for marital rape will, at least in theory, automatically make marital rape a gender neutral offense as well. As you may imagine, though, the procedural barriers to judicial remedy for one of the rare male victims would be immense, possibly insurmountable.

        • Statistics suggest that female-on-male rape is quite rare indeed (although male-on-male rape isn’t). Since India does not recognize marriage between two men, it would be relatively less common to find a male victim of marital rape. This is a hunch, not a statistical fact, but I’d be surprised if things turned out otherwise.

  26. Will women groups allow women to be properly cross examined or will they claim “raped person does not want to relive the rape again” and push the burden of proof on the husband?Cross examination should be similar to other non rape cases and not be a special “video trial” or anything of that kind which would make it more difficult for a man to prove his innocence.

  27. There are absolutely going to be unscrupulous people who falsely accuse their partners of rape (though I do question how widespread it is made to seem), but why is there so much of an issue about ‘how can you prove anything’ mainly on the issue of rape? Someone can falsely accuse someone else of theft or arson or blackmail or any other crime too. With any crime there is ‘he said,she said’ that the judges have to sift through, that is what the trial process and judicial system is there for, so that an innocent person does not go to jail. Like the Oscar Pistorius murder trial, where there was basically only his word that he mistook his girlfriend for a thief. A crime is a crime and should be recognized as such.

  28. //Two things to this. First, you prove it just like you prove any case of rape. Husband or stranger, why should it make a difference? The definition of rape doesn’t include the relationship of the rapist to the victim.//

    This is flawed. In case of a stranger the act of sexual intercourse _ lack of consent is enough to prove rape. In case of husband, we are to prove the consent part. Because o they would have had sex normally too. How do you prove it was non-consensual? you get the difference?

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  38. For recognizing rape they are making marriage trivial. Why not just ask people to stop recognizing marriages and just start live in relationships. Allow multiple partners by law. Anyone refusing can leave. A woman can have relations with many men and vice versa . You are wishing for a free society which is unlikely at present.

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  40. Dear Madam
    1) I hope you agree and I need not prove that the women’s group are demanding deletion of exception for husbands in the normal rape laws. The demand is that there should not be any difference in treatment of rape accused whether he is husband or a stranger. Hence the clauses which are applicable to a stranger rape are applicable to marital rape accused too i.e the following also:
    ‘114A. (1) In a prosecution for rape under sub-section (2) of section 376 or for gang rape
    under Section 376C of the Indian Penal Code, where sexual intercourse by the accused is
    proved and the question is whether it was without the consent of the other person
    alleged to have been raped and such other person states in his/her evidence before the
    court that she or he did not consent, the court shall presume that she or he did not
    consent.
    2) Kindly also go through the following links (relevant extracts/observations attached)
    http://www.merinews.com/article/justice-vermas-recommendations-not-gender-neutral-wont-curb-sexual-offenses/15880794.shtml
    http://www.merinews.com/article/do-we-really-need-a-law-on-marital-rape/15881312.shtml
    ———————————-
    http://ibnlive.in.com/news/government-should-ensure-that-we-have-a-verma-ordinance-rather-than-a-zero-ordinance-binalakshmi-nepram/371191-3.html
    (Q. Don’t you think that this law can be abused by women also to get out of marriage?. women having extra marital affairs can use this law to get the husband in jail. because now a days the law is heavily in favour of girls. how do you prove marital rape?. is it just girls word? Asked by: anand
    A. Many women in India do face experience of sexual violence in marriage and this issue was also taken up by Justice Verma Committee to safeguard this concern. In an equal, happy marriage, why would a wife want to file a case against the husband. The reasoning to ensure that support is there for women who are violated within a marriage. )
    (Q. These laws are really required most times by women who are suffering..but a lot of times misused by women who know the loopholes..if men are put in jail without an offense being proven…then isn’t a deterrent punishment the least requirement? Asked by: Satish
    A. We are living in times where our concerns are how do we as a nation safeguard our women and hence the whole issue of marital rape recommendation in Justice Verma report too. Women have too much to lose if they levy false accusations of sexual assault against their husbands. The argument of “false cases” against husbands is more ideological rather than sociological )

    http://www.firstpost.com/living/verma-reports-big-miss-legalising-commercial-sex-work-614041.html
    (For example, the legal changes proposed by the government ordinance and the bulk of the Verma Committee own recommendations seek to shift the onus of proof to men from women. In our male-oriented society, women who faced rape or sexual assaults are presumed to have brought it on themselves. But now, the boot is on the other foot. Earlier, women had a tough time proving there was non-consensual sex; now it is up to men to prove that there was explicit consent for sex. Fair enough. But this is not going to be an easy thing to prove when it is the women who will be making the accusations and they are the only ones who can substantiate the man’s claim of consensual sex.)

    http://terminatorak.wordpress.com/2013/02/07/pune-mirror-we-are-sitting-ducks-mens-groups-call-j-s-verma-commissions-recommendations-biased-claim-they-werent-consulted/
    (These recommendations will ensure that innocent people get punished by “assumption of being guilty”, even after going through a “grilling legal process”.)
    JUSTICE VERMA INTERVIEW link
    http://www.ndtv.com/video/player/your-call/no-response-from-those-meant-to-act-on-my-report-says-justice-verma/263015?h_also_see

    see the video from 38.0 to 41.21. About marital rape charge, he clearly says that , in such cases there cannot be much evidence and testimony of the woman is enough to conclude the occurrence of rape.
    ( well I am a small man and cannot criticize him, but I felt he was unfair in this aspect)
    If you feel It is not appropriate for me to write like this,kindly delete my comments.

  41. First, it’s not just women’s rights groups who are demanding that marital rape be treated as regular rape. I’m a man and I demand this also. All right thinking people should demand this.

    Second, you ask “How will you prove it?”. Two things to this. First, you prove it just like you prove any case of rape. Husband or stranger, why should it make a difference? The definition of rape doesn’t include the relationship of the rapist to the victim.

    Second, worrying about gathering evidence is no reason to not criminalize something. Forget evidence – right now, even if a man openly admits to raping his wife he cannot be charged! This itself should be enough proof that something is wrong.

    It’s interesting that so many people like you are only now asking what “consent” means. Why did it take the issue of marital rape to start asking these questions? This is an important thing to know for every case of rape.

  42. . About marital rape charge, he clearly says that , in such cases there cannot be much evidence and testimony of the woman is enough to conclude the occurrence of rape.

    I cannot view the video at the moment, but if he actually said that, I disagree with him (strongly).

    I actually find even the current laws (for non-marital rape) a bit problematic, because they can be interpreted to mean that a woman who says she did not consent must be believed despite testimony to the contrary from the defendant. This results in a shift in the burden of proof from the prosecution to the defendant, which is a violation of the most fundamental underpinnings of the justice system.

    Rape law is tricky, largely because it is exceedingly rare to have any external witnesses and physical evidence (such as an injury) does not always exist.
    Too often, it devolves into a he said-she said debate, specially when the defendant and the prosecutrix know each other, and had legitimate reason to be found together. In this environment, it can be very difficult to prove that consent was not, in fact, granted, but that is really no reason to simply shift the burden to the accused person.

    I do not agree that this is merely an ‘ideological’ debate. Rape is a serious crime, and a wrongful conviction can destroy the life of an innocent person. It does not get any more real.
    Especially in crimes as serious as this, it is exceedingly important to ensure to the greatest extent possible that the convicted person was indeed guilty. Simply assuming that a woman wouldn’t ever falsely accuse a man for fear of social consequences is, in my opinion, a misguided and rather narrow view of things.

  43. I’m not sure what your point is. No one on this forum has said that husbands should be treated guilty until proven innocent in case of marital rape. Neither is anyone here responsible for views expressed by ‘women’s groups’ or other articles that you have linked to. Rather, many have said that the burden of proof should be on the woman.

    The point is whether there should be a law against it at all, not whether it should be in the exact form that Justice Verma recommended. You seem to be ignoring that question altogether.

  44. Irrespective of the relationship of the accused to the victim, if there is no use of physical force, neither are there any signs of violence, nor any other physical signs on the body, can a woman accuse someone of rape because she had not consented ?

  45. Yes.

    Let us say you were robbed. The thief did not physically harm you and possibly did not leave any evidence of the robbery. In all likelyhood, if caught the thief may claim that you willingly gave your wallet to him. Does the law stop you for registering a case of robbery? No right? Will the thief be convicted just because you said so? No….the law still needs evidence.

    Then why in hell does the logic become skewed only when it is rape?

  46. @Cluelesschick,

    Comparing a rape with a robbery is rather silly. In a case of robbery, there is nothing more than monetary loss to the victim, whereas rape has serious physical and mental after effects on the victim. The problem with such an argument which you put is that one cannot generalize all crimes without considering the effects of each crime on the victim separately.

  47. The generalization I made is only related to the fact that both rape and robbery are crimes, which you have also acknowledged. Then why do we want to follow different procedure for reporting crimes?

    You are questioning reporting a rape where no evidence may be involved. My point was that you would not scrutinize someone who reported any other crime, say a robbery, without gathering evidence. So why the unfair treatment only for rapes?

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