Activists and lawyers speak out on the need to criminalise marital rape in India

A shuddering 26yearold woman is held in the arms of two others in a hotel room in Mumbai The other two women try to fight off their own tears as they desperately grapple with the revelation that the young Londoneducated woman they had met for the first time had been raped repeatedly by her husbandldquoIt was shock anger and helplessnessmdashall at oncerdquo recalls Arati Kadav the director of the 2024 film Mrs which dwells on the subject of marital rape among other issues Kadav and Sanya Malhotra the filmrsquos lead actor were researching for the movie but were devastated by the survivorrsquos accountldquoWe wanted to meet her because she was going to talk about the unequal distribution of domestic labour since it is such a big part of both the original Malyalam film The Great Indian Kitchen and our adaptationrdquo says Kadav over the phone ldquoWe found a few women willing to speak and set up a meeting with them individually in a hotel room without any men in the room It began with her the survivor talking about the labour but we could see that she wanted to talk about something more She began howling as she opened up I think just talking about it was freeing for her I broke down toordquo Kadav addsThose who are working with marital rape survivors say criminalisation is needed Representation IllustrationiStockJust days after the OTT filmrsquos release on February 7 the Chhattisgarh High Court on February 11 freed a man who had been convicted by a trial court of rape and unnatural sex with his wife leading to her death The HC however pointed out that marital rape is not a criminal offence as per the countryrsquos laws and quashed the convictionThe ruling has caused huge outrage across the nation This furore comes after a year of the world watchingmdashand supportingmdashFrench woman Gisele Pelicot in her fight for justice against her husband Dominique Pelicot who drugged and raped her multiple times over nine years and also arranged for her mass rape by scores of other perpetrators Dominique was sentenced to 20 years in prison and Gisele was hailed as a feminist champion for her fight to shift the stigma of rape from survivors to the perpetrators with her now famous line ldquoShame must change sidesrdquoIn India on the other hand there are no words to describe the anguish of survivorsmdashwe do not have the legal language to describe marital rape it simply does not exist as per our lawMrs released in February has touched upon marital rapeThose who work in the sphere of social justice and see the physical financial and sexual abuse meted out to women resoundingly agree that this is one of the greatest failures of the Indian judiciary legislative and society at largeIn October 2024 the Centre for the first time spelled out its stand on marital rape before the Supreme Court arguing that applying the stringent penal provisions of rape within marriage would be ldquoexcessively harshrdquo and could have serious sociolegal implications on the institution of marriage The fear some have cited is that if marital rape were to be criminalised there was potential that it would be misused to entrap men in false casesTrisha Shetty lawyeractivist and founder of womenrsquos rights organisation SheSays counters ldquoThe fear that criminalisation of marital rape will mean that women will suddenly get up and register cases against their husbands is unfounded The truth is we are uncomfortable talking about violence within marriages A woman must have autonomy over her body regardless of her marital statusrdquo Shetty tells usTrisha Shetty Persis Sidhva Sangeeta RegeThe data backs Shettyrsquos statement A 2014 working paper by A Gupta titled Reporting and incidence of violence against women in India compared data from the National Family Health Survey NFHS and National Crime Record Bureau NCRB which indicate that less than one per cent of cases of sexual violence by the husband are reported to the policeA joint report by Dilaasa a crisis centre for women and Centre for Enquiry into Health and Allied Themes CEHAT seems to be the only exhaustive documentation of marital rape The report compiled from data from three public hospitals in Mumbai between 2008 and 2017mdashfound that out of 1664 rape survivors only 18 women had reported being raped by their husbands and sought medicolegal supportSangeeta Rege one of CEHAT consultants documenting onground data from the BMC hospitals reveals that most survivors had also experienced other kinds of violencemdash financial emotional physical and sexual ldquoAbout 70 per cent of women disclosed sexual violence in marriages when they came to seek help for domestic violence Sexual violence does not occur in isolation and is often accompanied by physically emotional and financial violencerdquo she explainsItrsquos clear that problem is real when we read between the lines and statistics The 201921 NFHS report shows that nearly one out of five Indian women cannot refuse their husbands sex Over a third of the male population cannot accept their wives turning their sexual advances down and six per cent believe they have the right to force their wives into sex These are not the beliefs of a generation gone bymdashthe sample age group for the survey was 1549 yearsDespite the apparent frequency of sexual violence among married couples survivors are apprehensive about filing a complaint ldquoOf the 18 women who had confided about marital rape only eight said they wanted to record a complaint So there is no evidence that women misuse the law and file a marital rape as a weapon against menrdquo adds RegeChild and Womenrsquos rightsAdvocate Persis Sidhva tells Sunday midday that most women do not reveal the marital rape aspect even when they go to court to register domestic violence complaints against their husbandsldquoI had represented a woman in a domestic violence case for almost oneandahalf years and it was only after all that time fighting her case that she finally told me she had been raped by her husband She said it was only later that she realised that it was rape She felt safe enough to tell me about it because she and I were in the fight together Most women take time to recognise marital rape as an offence and others who do often donrsquot provide details fearing backlashrdquo says SidhvaTherersquos good reason women are hesitant to seek action against their husbands In the Chhattisgarh case despite the womanrsquos death after the alleged assault her husband walked free ldquoLet us understand that in the Chhattisgarh case the arrest was not for marital rape Now under the BNS even lsquounnatural sexrsquo with an adult wife is not a criminal act The fact is there is no direct legal recourse to punish the act that caused her deathrdquo says SidhvaShe had hoped for more initiative from the Supreme Court during the October 2024 hearings on marital rape pleas but was disappointed when the top court deferred the hearings and observed that it was not for the court to formulate law and this was a matter for the legislature ldquoIt was a split verdict With one Judge striking down as unconstitutional the exception to marital rape under the IPC However the other Judge rejected the plea to criminalise marital rape by stating that any change in the law must be carried out by the legislaturerdquo she addsMost women have come to terms with the fact that proving rapemdashand marital rape on top of thatmdashis very difficult in India Mrudula Sawant centre incharge Dilaasa KB Bhabha hospitalHospital in Bandra says ldquoSexual violence within marriage is very common However it is the least spoken about Marital rape is not a criminal offence under our law and socially also it is considered not to exist But it creates an adverse impact on womenrsquos physical and mental healthrdquoldquoWe do not judge women who come to us for helprdquo SheSays founder Shetty shares ldquoWe donrsquot even talk about them leaving their home A woman in that situation is not leaving because of many circumstances We concentrate on making these women financially independent what they do with the independence is their callrdquoldquoAt the same time I must add it is a moment of reckoning for us as a countryrdquo adds Shetty ldquoItrsquos time to go beyond the argument of lsquoIf he is your husband howis it rapersquordquoNo legal protectionLegally the Indian government does not recognise marital rape as an offence It is an exception to the provision for rape under Section 375 of the Britishera Indian Penal Code This stems from the presumption that sexual consent is implied in marriage and cannot be withdrawn by wife who is 18 years or olderThe UK outlawed marital rape in 1991 India despite reformulating its criminal code in 2024 has retained this regressive exemption in the Bharatiya Nyaya Sanhita BNS Section 63 of the new code excludes nonconsensual sex between a husband and wife aged 15 and above from the definition of rape To make matters worse BNS has also omitted Section 377 unnatural sex of the IPC which was the only legal recourse for women forced into sex by their husbandsMental and physical scarsA report by CEHAT and Dilaasa found that 41 per cent of marital rape survivors reported health complaints as a result of the ldquoongoing violencerdquo Of these 28 per cent attempted suicide 25 per cent reported reproductive health complaints and one per cent attempted homicideldquoThe direct health consequences are constant pain in the stomach lack of appetite urinary tract infections sexually transmitted diseases and contraction of AIDS due to unprotected sex Since many husbands refuse to use a condom we are seeing a lot of men force their wives to undergo medical termination of pregnancy and then the cycle continuesrdquo says Dilaasarsquos Mridula Sawant adding that they also witness signs of selfharm among survivorsA very real problem1837Of Indian women say they cannot say no to sex with their husbands3437Of Indian men say their wife has the right to refuse sex637Of men believe they have the right to force their wife for sexSource NFHS5 201921 sample age group 1549