Under the new ordinance, wives can't file criminal complaints of sexual assault, but husbands can.

Many people have argued that marital rape should not be a crime since it is hard to find evidence, women will misuse this law or the institution of marriage will disintegrate. But few realise that the ordinance has criminalised rape in marriage albeit by reserving the right to file criminal complaints on the ground of sexual assault for husbands. 

The Criminal Law Ordinance 2013 holds that any person can perpetrate sexual assault. This means women too can be prosecuted for sexually assaulting adult men. But not every provision is gender neutral since the ordinance says, "sexual intercourse or sexual acts by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault".

In other words, a husband can accuse his wife of forcing him to have sex, without his consent and against his will. However, a wife cannot lodge a criminal complaint against her husband for forcing her to have sex without her consent and against her will. Further, a wife can also be charged for touching her husband's sexual parts without his consent and against his will.

Consent is defined as the unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates willingness to participate in the specific act. Further, the ordinance explains, "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".

In other words, a wife has to ensure that she has the unequivocal agreement of her husband before she has sex with him, but he does not need to secure her consent. Further, if a husband does not resist his wife's sexual overtures, and his body does not bear any marks of injury, this will not be presumed to indicate consent. However, even if a husband rapes his wife and her body bears mark of grievous sexual injury, she cannot bring case of sexual assault against her husband.
This is not only bad drafting but it is a completely misogynistic law. Is it not a travesty that not only can wives not take their husbands to court for having raped them, but husbands can accuse wives of touching their sexual parts without their consent and against their will? Is this truly what the women of this country deserve?

What is sexual assault today? Sexual assault is defined extremely broadly without any gradation of different offences. Section 375 (a-c ) defines sexual assault as the penetration of bodily parts or other objects into bodily orifices without consent. Section 375 (d) holds that a person commits sexual assault if s/he "applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person" without consent. Section 375 (e) holds that when any person "touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person" without consent, it amounts to sexual assault. Not only does the ordinance uses the word "he" to designate the perpetrator, although the offence is gender neutral, it collapses different offences, which otherwise were graded in the Verma Committee recommendations into a single definition.

Further, the ordinance exempts all forms of touching or penetration, which are "carried out for proper hygienic or medical purposes". Surely such medical procedures require informed consent. Further, it is completely unclear what a hygienic reason for penetrating a vagina or anus;or touching a vagina or anus could be.

In other words, what this definition does is to allow the insertion of two-fingers in the vagina or anus of the rape-survivor for medical purposes without requiring the informed consent of the survivor. Is it a coincidence that the ordinance is silent on the deletion of the two-finger test or the medicalisation of consent? Despite many protests, recommendations and an online petition to ban the two-finger test, which has been signed by 20, 000 people from across the world, the Indian government by virtue of the ordinance has not banned the two-finger test. It has also not specified the requirement of securing informed consent, prevalent earlier, from rape survivors for doctors to do medical examinations.
What is even more alarming is that if a person (man, woman or transgender) is found guilty of touching another person's body, without consent twice, such a person could get the death penalty as a repeat offender. No wonder the government is clear that a wife cannot lodge a complaint of sexual assault against her husband. The Law Ministry is afraid that under this definition of sexual assault, many husbands would have faced the death penalty, if women were allowed to file complaints against their husbands for assaulting them.

Hypothetically speaking, if a wife is found guilty of inappropriately touching her husband twice, she could get a life sentence or even death penalty. Is this what the political parties crying for capital punishment and opposing marital rape want?
Perhaps they would like to read 376E which holds "whoever has been previously convicted of an offence punishable under section 376 or section 376 A or section 376 C or section 376 D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life, which shall mean the remainder of that person's natural life or with death". It is not at all surprising that section 376 B is not included in this section, since section 376 B describes sexual assault by husbands on separated wives. Under no circumstances can rapacious former husbands be given the death penalty.

The reduction of sentencing in the case of sexual assault of separated wives then is not surprising. Section 376 B holds that "whoever commits sexual assault on his own wife, ... shall be punished with imprisonment of either description, for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine". Why are some rapists to be treated with greater leniency than others, just because the victims they choose were once married to them? Why does the government think that it is a lesser offence if a husband rapes his estranged wife?
The political and legal debate on marital rape is insulting. It wounds very deeply since the law now tells us that husbands are not rapacious, but wives can be rapacious.
Today, the memory of Phulmonee Dasi, a child bride who was raped to death by her 35-year-old husband, which provoked the Age of Consent Bill 1891 debates in colonial India, comes to haunt us. Apologies, Phulmonee, the colonisation of women's bodies continues, now by the diktat of an ordinance, which allows husbands to rape their wives with impunity and also allows them to file criminal charges of sexual assault against their wives.

(The writer is assistant professor, Centre for the Study of Law and Governance, JNU)