Marriage and Rape: We need a law on marital rape but such acts cannot be separated from

the structure of the Indian family

Source: Economic and Political Weekly, Vol. 48, No. 12 (MARCH 23, 2013), pp. 7-8
Published by: Economic and Political Weekly
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 Economic&PoliticalwEEKLY
MARCH 23, 2013

Marriage and Rape

We need a law on marital rape but such acts cannot be separated from the structure of the Indian fa

the aftermath of the 16 December 2012 gang-rape in man, through the law, access to his wife's body, which is
0 ne ofDelhithehas beenpositive consequences
the intense public focus on rape and alsoof
the the
basis forpublic
creating legalprotests inandparticipate
heirs to property lineage, in sexual relations. Marriage guarantees to the
sexual violence in India. For long buried by the patriarchal Despite all their other differences in personal law, zealously
establishment and its state, this issue has now become impos- guarded by religious fundamentalists, there is near uniformity
sible to ignore anymore and even the most reactionary parts of in imposing the male's right to sexual access to his wife under
India's political establishment are forced to demonstrate that all of them.
they are going to act on sexual violence. The report of the com- Moreover, an overwhelming number of Indian citizens live
mittee headed by the retired chief justice of India, J S Verma in, what are called, "arranged marriages" where the consent
has been a major achievement in putting forth a framework of the individuals involved in the marriage is at a discount,
for a progressive law on this issue, a structure that addresses often considered entirely irrelevant. What would be the
the many different aspects of sexual violence and provides definition of marital rape in such a context where the consent
sensible measures which will help plug loopholes and provide of the woman to marriage is taken for granted? (This is
justice to victims of sexual violence. not to deny though that marital rape can take place even
Unfortunately, the response of the government has been where the marriage has not been arranged; it indeed
far from satisfactory. An ordinance was rushed through with happen.) Given all this, it is obvious that criminalising m
ill-defined clauses and half-hearted measures. The manner in rape has the potential to disturb the organisation
which the waters were muddied by introducing regressive contemporary Indian family. This largely explains the
ideas into the definition of rape seemed a deliberate attempt ance from the patriarchal establishment (which enco
to scuttle the proposed law. It steered clear of some of the both society and the State) to accept that there is some
more important recommendations of the Verma Committee, like marital rape and therefore to accept the prop
and at the time of writing dissensions within the union cabinet criminalise it. Precisely for this reason, criminalising m
on matters such as the age for consensual sex, on punishing rape is so essential to any politics which foregroun
so-called "false complaints" and on the subject of marital démocratisation of gender relations. This very central
rape, threaten to unsettle the proposed legislation even before sex and power in the present forms of marriage and
it comes to Parliament. The Justice Verma Committee even also leads to the opening up of a host of linked issues r
addressed the issue of forcibly having sex with one's wife to consent in marriage.
despite her clear refusal. This is an important first step and However, it is also necessary to realise that even if th
the government should not remove it from the final law (as it posed legislation covers marital rape and makes it a c
seems likely to do). act, it will be a very small and partial step forward. For one
It has been an uphill struggle for the women's movement thing, other than in exceptional cases, it
in India to get marital rape on the agenda. For starters there to prove marital rape given the condition
is little or no legal support to the idea of rape within the ture. Sexual coercion is an indistinguishab
institution of marriage. This absence has been compounded spectrum of unfreedoms and coercions w
by social attitudes that refuse to accept that there could structure in India and whose main target
be lack of consent within marriage. The legality of marriage children. Consent, coercion, duties, dema
has been founded on the act of "consummation", while the inextricably intertwined that it will be n
inability to have sex provides grounds for its annulment, get one without undermining other aspect
Most importantly, the husband has the right to demand lack of choice about marriage and mothe
"restitution of conjugal rights" or take the support of the State ence or even, living assigned gender r
to get sexual access to his wife who may be unwilling to more prominent ones.
Economic & Political weekly nrcrci march 23, 2013 vol xlviii no 12 7

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EDITORIALS

The women's movement has for decades targeted certain but also because the Indian family prov
institutions of and behaviour within the family such as its problems, the closest of emotional ties
dowry and domestic violence. But it is now time to start Questioning the family involves questioni
questioning the very structure of the Indian family - the one's siblings and children; it involves ques
monogamous, patrilineal, patronymic, and patrilocal family - which appear alongside intense love and
which has been "normalised" by law. This is a daunting task, our present family form is critiqued and
not just because it will undermine the entire structure of really imagine a life free from coercion an
social, economic and political power in contemporary India, sexual or otherwise?

Story without an End

The continuing indifference to the Bhopal gas victims is unconscionable.

entire nation". It was referring to the fact that 28 years tute of Toxicology Research confirmed that the groundwater
The Supreme
after the BhopalCourt haswherecalled
gas disaster, it the
deadly methyl iso- was"worst
contaminatedstigma onof the
with high levels nitrates,water aquifers. Finally, in September last year, the Indian Insti
lead and nickel
cyanate (mic) from the Union Carbide plant killed thousands on and that this had spread over 18 colonies in the area. Why did it
one night and many more in subsequent years, the survivors take so long to confirm something as basic as this? Surely it did
continue to be slowly poisoned. Till today, there is no closure to not require some special or high level of expertise to conduct
the tragedy that unfolded that night. In addition to the many the basic soil and water tests. It is unconscionable that people
who continue to suffer from ailments caused by exposure to the who survived the lethal mic have been forced to live next to a
toxic gas, many more are now suffering the consequences of in- toxic pile and survive on contaminated water,
gesting poisons from the contaminated waste that is still lying Earlier this month, the issue came up again in the Supreme
in the abandoned plant. Court cases and continuous campaigns Court wherein it ordered that a trial incineration of some of
notwithstanding, neither the state government of Madhya the toxic waste be done at the Pithampur facility in Madhya
Pradesh nor consecutive governments at the centre have dealt Pradesh. The state government had resisted using this plant
with this tragedy with the urgency that is needed. With the pas- for dealing with the waste arguing that the Central Pollution
sage of each year, and the marking of another anniversary of Control Board (cpcb) had not certified the plant's ability to
the Bhopal tragedy, there is little progress towards justice for handle the waste. It is well known that even the most efficient
the victims or an end to their exposure to toxins. plant cannot prevent some amount of toxic organochlorines
There are several parts of the Bhopal tragedy that remain from being released into the atmosphere when this type of
unresolved. Perhaps the most crucial, in terms of impact on the waste is incinerated. This partly explains why the German
daily lives of people, is the neglect by the state and central company pulled out. And the Pithampur facility would proba
governments in dealing with the poisonous waste in the bly not qualify as the most efficient waste treatment plant in
defunct plant. Last year, as a result of orders from the Supreme the world by a long measure. Yet, what stopped the Madhya
Court that action must be taken, it appeared as if a solution Pradesh government from conducting a trial run, as suggested
was in sight. A German company, Deutsche Gesellschaft fiir by the Court, earlier?
Internationale Zusammenarbeit (giz) agreed to lift 350 metric The apex court has concluded that the tussle over where the
tonnes of waste from the Bhopal plant and incinerate it. But the waste should be disposed of has "been reduced into a matter of
deal fell through, partly due to opposition from within Germany political battle" because of two different political parties at the
where the consequences of incinerating such waste are well centre and in Madhya Pradesh. And it is probably right in
known. As a result, even as the Bhopal victims marked the concluding this. If an illustration was needed of how politics
28th anniversary in December last year, the toxic pile remained overrides basic humanity, this surely must be one. At stake is
where it was with no solution in sight. the health of thousands of people who have suffered for almost
An illustration of the indifference of the state and the central three decades. After the 4th March order by the Supreme Court,
governments to the toxic crisis in Bhopal is the lackadaisical there is now some hope that 10 tonnes of similar waste from the
manner in which the testing of groundwater has been done. The Hindustan Insecticides Limited (hil) plant in Kochi will be sent
survivors of the Bhopal gas tragedy have been pointing out for to Pithampur for a trial run before the matter comes up again
years that the poisons from the waste in the plant have been for hearing in the Supreme Court on 6 May. But even if this hap
leaching into the groundwater. In 2009, the Centre for Science pens, it is only the first step. Given the way this pile of poisons
and Environment conducted a survey confirming this. Yet, both has been tossed around, there are bound to be other hurdles
the central and the state pollution boards refused to accept these before it is finally cleared. Tragically, the Bhopal gas story re
findings claiming that the clay layer running under the plant mains a saga without an end because the people who could have
prevented the poisons from leaching into the underground done something have simply stopped caring.
8 march 23, 2013 vol XLVlll NO 12 i m ti'.'i Economic & Political weekly

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