Marital Rape: A Conversation India Refuses To Have

29 Oct 2020 7 min read  Share

You are not allowed to kill your wife, slap or sexually molest her in the bedroom, but India’s criminal law makes an exception to raping your wife. As the lockdown trapped Indian women with their abusers, the absence of a law meant they were on their own.


Pune: On 24 March 2020 as Prime Minister Narendra Modi announced the 21-day lockdown to contain the spread of Covid-19 with less than four hours’ notice, many women found themselves trapped with their abusers.

Anand Suryavanshi, a programme coordinator with SNEHA, a non governmental organisation (NGO) that focuses on women’s health and intimate partner violence, noticed a sudden drop in complaints from the communities the organisation works with in Mumbai.

“You can’t call out for help when your abuser is in the house, around you 24x7,” Suryavanshi told Article 14.

But SNEHA’s helpline number and email address—both listed on their website—started receiving distress calls and emails. These came not from Mumbai where the organisation’s counselling centres are, but from the other parts of Maharashtra and India.

As the unlock process began, the stories of abuse from the communities began to pore out as well. SNEHA received 2,115 complaints over six months to August 2020, compared to 1,528 during the six months prior to March, a 38% jump. A majority (961) of these were complaints of intimate partner violence, followed by domestic violence (689).

Roughly one in every three (31.1%) Indian women between the age of 15-49 who has ever been married said they had experienced violence from their spouse, according to data from the National Family and Health Survey (NFHS) 2015-16. Was this violence physical, emotional or sexual? The data does not ask.

Marital rape remains one of the least discussed aspects of rape in India. India’s rape laws do not not recognize rape if the perpetrator is a spouse. Exception two to section 375 of the Indian Penal Code, 1860, states that “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” This has since been read down to 18 years of age by the Supreme Court.

This view of the law raises a crucial question: Does marriage override the need for consent?

A majority of women and men that SNEHA counsels would nod yes, according to programme director Nayreen Daruwalla, who explained that physical violence is never in isolation. Financial violence in which the husband might refuse to bear household expenses, emotional abuse and sexual violence often occur along with physical violence. Most women resign themselves to giving in to their husband’s sexual abuse, said Daruwalla. “It is only when the physical violence becomes unbearable do they step out to complain and ask for help,” she said.

Government Pushback

A public interest litigation (PIL) filed in the Delhi High Court (HC) in January 2015 seeking criminalization of marital rape was nearing its completion—with both sides having wrapped up their arguments—when the lockdown interfered with the working of the courts.

“Sexual and physical violence in the context of marriage, in the domestic sphere, has increased dramatically during Covid-19. So the deterrent that is provided by the message put out by the criminal law is absolutely vital. As is the remedy. The constitutional case to criminalise marital rape is harder to adjudicate through an online hearing,” said advocate Karuna Nundy who is representing the petitioners RIT Foundation and All India Democratic Women’s Association in the case. “Government and the political parties have not acted so far on this because of the patriarchy at the heart of all these parties, it's an emergency though. And they must at the very least provide welcoming, safe shelters for women and children that may be accessed on a voluntary basis."

Delhi government additional standing counsel Nandita Rao said non criminalization of marital rape was "not a violation" of Article 21 (that deals with protection of life and personal liberty) of the Constitution, since a wife is not compelled to live with a sexual abusive husband.

“They don’t want the law in the bedroom despite the fact that you are not allowed to kill your wife in the bedroom, or slap your wife in the bedroom, nor are you allowed to sexually molest her in the bedroom (under the domestic violence act). Only thing the criminal law has an exception on here is raping a wife in her bedroom,” said Nundy.

The Centre was similarly resistant to a 2018 Bill introduced by the Congress MP Shashi Tharoor in the Lok Sabha—the lower house of the Parliament. Called ‘The women’s sexual, reproductive and menstrual rights bill, 2018,’ the Bill sought to criminalize marital rape, among other rights to women and subsequently lapsed for want of support from the government. “It is also unfortunate that the governmentincluding a woman Minister handling the relevant portfolioopposed the criminalization of marital rape in the courts,” said Tharoor in an email reply to Article 14. “Since what could have been done has not been done so far, the government must bring in comprehensive legislation without further delay that not only strengthens the position of women in our society but also addresses the challenges of the present times, including declaring marital rape to be an act of violence rather than an issue of ‘conjugal rights.’”

We sought comment from Smriti Irani, minister for women and child development, for the government’s stand on the issue. The story will be updated when we receive a reply from her.

Situation Worsened By Lockdown The home is statistically the most dangerous place for a woman, according to the United Nations (UN). Globally, one in every three women have experienced intimate partner violence, a trend COVID-19 lockdown is feared to have worsened.

In March when countries around the world first began implementing lockdowns, the World Health Organization (WHO) sounded alarm bells. Governments were asked to do their best to pre-empt the spike in intimate partner violence and provide support to women.

As Indian women found themselves caged within the walls of their home, the law was not in place to protect them. “Covid-19 period was hard because we came to a point where women were just not able to bear it anymore,” said Daruwalla. “The husbands were home, there was abuse along with complete restriction of fertility.”

Article 14 in April reported on the surging domestic violence under the lockdown. By June as India was in the process of unlocking, data and stories from case workers pointed to the severity of the issue.

Nearly two decades back, the 172 report of the law commission of India acknowledged that there were demands to criminalize marital rape, but said it was “unable to agree” with it.

A decade on the view had changed substantially.

“The exemption for marital rape stems from a long out-dated notion of marriage which regarded wives as no more than the property of their husbands,” noted the 2013 report of the Verma committee headed by Justice (Retd) J. S. Verma. “A rapist remains a rapist regardless of his relationship with the victim,” said the report while advocating for criminalization of marital rape.

India though is not alone. By 2018, 12 out of 185 countries and territories retained clauses in legislation exempting rapists from prosecution when they are married to, or subsequently marry the victim, according to UN Women.

Surveys and research indicate that at the root of the sexual violence women face are cultural and behavioural norms.

Violence Stemming From Behavioural Issues

Around 25% men of the 10,000 respondents across nine sites in Asia and the Pacific admitted to committing rape, according to a 2013 UN survey.

Among the men who admitted to raping their partner the common motivation was “sexual entitlement”, a belief that men have a right to have sex with a woman regardless of consent.

Husbands’ drinking problem and behavioural issues like jealousy, suspicion and control puts women at high risk of severe IPV and injuries, according to research. There are serious long-term health issues as a consequence of sexual violence.

“In terms of public health impacts women experience intense pain, mental health issues and injuries. A good example of IPV is in case of sexually transmitted disease (STD) like HIV where an infected partner could transmit the virus to his wife,” said Bushra Sabri, assistant professor at the Johns Hopkins School of Nursing whose research has focused on IPV among women in India. “There are reproductive health consequences like unintended pregnancies and negative reproductive health outcomes for the woman and the baby. Ongoing and chronic abuse can also negatively impact women’s immune system and enhance their vulnerability to diseases.

Sabri added that in previous research IPV has been significantly linked with extreme consequences like higher rates of suicides.

In 2019, stay-at-home women accounted for nearly half (51.5%) of all women who had died by suicide and were nearly one in every six (15.4%) people who died by suicide, according to data from the National Crime Records Bureau (NCRB).

Daruwalla of SNEHA points to instances where a woman repeatedly seeks medical termination of pregnancy as a red flag of sexual abuse. “Doctors are often not trained to ask basic questions,” she said. SNEHA often is witness to cases where a woman is forced to have sex with a partner immediately after delivering a baby or a termination of pregnacy against medical advice.

“Medical community needs to be sensitized to the significance of the problem and how IPV plays a role in the symptoms that women present in healthcare settings,” said Sabri.

But having a law in place would only be the first step.

The Women A Law Won’t Help

All the experts that Article 14 spoke for this story reiterated that having a law would be a start but there is a need to sensitize women, the medical community and the police. And then there are women the law might never reach.

Dalit women face caste discrimination outside home and domestic violence inside, found Sujatha Devarapalli, currently teaching at the Tata Institute of Social Science (TISS), Mumbai. Devarapalli who spoke to women in Telangana and Andhra Pradesh found that Dalit women have almost no institutional support, even when they want to complain. The topic of domestic violence is not touched as the Dalit movement presents the family as a democratic space, she said. “Since the community is under external attack and there is so much violence it faces, the issue of domestic violence is not touched by the movement,” according to Devarapalli. Quick investigations, counselling centres at district levels and awareness campaigns would help, she added. “This information should be provided at the grassroots level.”

(Disha Shetty is an independent journalist writing on public health, environment and gender.)