Wife invokes Sec 377 against husband; what's 'natural' when rape is legal in Indian marriages?

Raped and abused for 14 years of her married life, Fiza* knows nothing about what 'natural' sex is.

news Marital rape

In her 14th year of marriage, Fiza* thinks that men just see women as good for one thing and one thing alone – sex.

In a voice that sounded both tired and somewhat resigned, she asked, “Wo jo peeche se hota hai... log karte hai aisa?” (Do people have sex from behind?). Anal sex must be for “those other women” who “look different” and “must eat and drink differently”, she says. “I’m a homely woman. I don’t like it. It hurts.”

Fiza is referring to the woman in the pornographic videos of people having anal sex. Her husband watches them on his phone and makes her imitate them against her will. “Dekho dekho… Sab aise karte hain,” he tells her (See, everyone does it). Consent has had no place in her marital life, and anal sex no place in her imagination. “He would ask for sex day and night. Even now he wants it in the day,” she says.

There was no respite, even after she delivered their three children or had her period.

Her story glaringly points out the blind spots of Indian law. She has no idea about the Indian law’s stubborn refusal to discard the Victorian classification of certain acts as “unnatural sex”, while simultaneously denying women like her a remedy for rape by her husband.

But a woman in Delhi has approached the Delhi High Court, seeking penalization for her husband who performed “unnatural” sexual acts against her will by invoking Section 377. Her husband has argued that he is protected under the exemption given to marital rape under section 375 of the IPC. The Court will take up the case in August.

Invoking Section 377 in such a manner is rare, but it presents an opportunity to interpret this otherwise objectionable provision, to provide protection, says Akila RS, an advocate practising in the Madras High Court.

She explains that the Indian Penal Code was amended in 2013 to widen the definition of rape to include non-consensual sexual acts including anal sex, oral sex etc. Until this amendment, several sexual acts other than penile-vaginal sex were criminalised only by Section 377 as being 'against the order of nature'. This is problematic because these deemed ‘unnatural’ acts were criminal even when engaged by consenting adults.

Akila pointed out however, that the marital rape exception – that disregards married men committing these non-consensual acts against their wives, and does not consider them as 'rape' – exists only under Section 375, and not under Section 377.

“Creatively construed, 377 could be used to limit the marital rape exception and move towards more gender-sensitive justice. The court has an opportunity to do that now,” she says referring to the Delhi case.

For most women who are raped by their husbands, however, the distinctions of “natural” or “unnatural sex” made by Indian law, simply do not matter.

Donna Fernandes, Secretary of Bengaluru-based Vimochana Forum for Women’s Rights insists that women from lower socio-economic backgrounds often get the rawest end of the deal; their husbands’ cruelty and sexual assault made worse by lack of support.

Fiza’s life is a case in point. “I went to my family when he used to beat me and rape me,” she says, recalling the early days of her marriage. “My mother would tell me to go back. ‘You live or die but you go back,’ she would say.” Fiza now wants to separate from her husband but cannot seek refuge with anyone from her family.

Hospet-based Karnataka Convener of the Bhartiya Muslim Mahila Andolan Nasreen says that such attitudes are not uncommon. “Even if a woman manages to involve the panchayat, the panchayat will only abuse her. They don’t even know what section 377 or unnatural sex is,” she says.

The limited legal recourse for women in these situations is hampered by patriarchal mindsets. “Men, police and even courts have a set idea that marriage is a license to sex. If a woman complains that her husband is having sex outside marriage, she will be told it’s her fault for refusing him sex within it,” says Donna.

The Protection of Women from Domestic Violence Act offers civil remedies from range of abuse including of a sexual nature. The Act provides for protection when a woman’s mental, physical or sexual well-being is endangered. “Even in the case of marital rape, a woman can claim police protection, bar the husband’s entry from the marital house or be given a separate accommodation,” Akila says.

Fiza is hoping now to use this provision to separate from her husband and finally have her chance at a happier life. “I am just waiting for him to raise his hand now,” she says, “as soon as he does, I will file a complaint.”

*(Fiza’s name has been changed on request)