Just last year, Maneka Gandhi had condemned marital rape as unacceptable

On Thursday, woman and child development minister Maneka Gandhi contradicted her own stance when she stated in the Rajya Sabha that the concept of marital rape could not be applied to India.

Responding to the oft-repeated question on whether marital rape would be made a criminal offence, Gandhi submitted a written reply saying, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament.”

Gandhi’s statement was a verbatim reiteration of the response that minister of state for home affairs, Haribhai Parathibhai Chaudhary, had given Parliament in April 2015, when asked if the government would amend the Indian Penal Code to remove the exception of marital rape from the definition of rape.

But Gandhi’s response was also in stark contradiction to her own views on marital rape, expressed in an interview two months after Chaudhary’s statement. In the interview with IANS in June 2015, she had condemned marital rape as unacceptable and claimed that such a form of rape is “not always about a man’s need for sex, it is also about his need for power and subjugation”. Such cases, she had said, needed to be taken with seriousness, because “violence against women shouldn’t be limited to violence by strangers”.

Complex laws

The debate over marital rape has been prominent both in Parliament and among civil society organisations after the Justice JS Verma committee recommended, in 2013, that it should be made a criminal offence. The committee, appointed to review laws for sexual offences, had noted that “denying married women their right to consent reduces them to ‘no more than the property of their husbands’”.

The government did not accept Verma’s recommendation when it eventually amended rape laws in April 2013. Though it expanded the definition of rape, it rejected the proposal to recognise marital rape.

Instead, parliamentarians chose to retain an exception to Section 376 of the IPC, which states that “sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”. In other words, if the wife is 15 or older, her husband cannot be accused of raping her.

This clause is worrying not just because it legitimises a husband forcing sex on his wife. It is also completely incongruent with other Indian laws when it comes to the age of consent for sex and marriage for girls, which is 18.

This would imply that between the ages of 15 and 18, a married girl has no protection from rape. But had she been unmarried, she would have been considered incapable of consent.

In practice, religious personal laws allow girls below 18 to marry under certain circumstances. For instance, the Hindu Marriage Act allows a girl above 16 to be married with her father’s consent.

A host of women’s rights groups have been protesting against this clause for decades, but the state has only one major argument in response – that recognising marital rape is a threat to the institution of marriage.

Threat to family?

In March 2013, before the new anti-rape bill was passed, the Parliamentary standing committee on home affairs published a report of its discussions on the Justice Verma Committee’s recommendations. Several members of the standing committee claimed that criminialising marital rape had the potential to destroy the institution of marriage, the report said. “In India, for ages, the family system has evolved and it is moving forward…if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice,” it said.

The same month, when the anti-rape bill was being discussed in the Lok Sabha, Bharatiya Janata Party MP Sumitra Mahajan is reported to have said, “People these days get divorced over insignificant issues. Marital rape shouldn’t be made into a criminal offence…Things like these should be sorted out within the family or by counselling. There is no need for a law.”