Indian Courts Finally Consider Making Marital Rape Illegal
The Delhi High Court is hearing petitions on whether to criminalize marital rape in India.
NEW DELHI, INDIA – Sitting in a tiny room in a half-finished building on the edge of an industrial district in Delhi, Nadia* talks about the violence she is suffering at the hands of her husband.
“He thrashed me for five nights in a row, but last night it was particularly bad. So I rushed out and called the women’s helpline,” she says.
Nadia is speaking to Elizabeth Khumallambam, a senior coordinator of Nari Shakti Manch, a charity that campaigns for the welfare of female migrant workers in the area. “He beat me because I refused to have sex with him, but I am just not well,” Nadia tells Khumallambam.
“He says I am denying him sex because I am having an affair with someone, but this isn’t true. I am a human being, too, and sometimes my body isn’t up to it.”
After the two women talk for a while, it becomes clear that Nadia’s refusal is not always respected. Her husband has also raped her.
It’s difficult for Nadia to find the words to describe her experience in Assamese, the language the women are speaking, but eventually she says, “The problems started a few days after marriage. He would force himself on me. There were days when I would feel very sick.”
Nadia, 30, has been married for a year. She migrated to Delhi from Assam, hoping for a better life. When she went to the police about her husband’s abuse, she says they beat him, but ultimately let him off with a warning.
“Domestic violence among the migrant population is very high,” says Khumallambam, who handles such cases on a regular basis. “In most cases, it is not reported to the police. It is only when we talk at length that we realize a woman like Nadia is a victim of sexual violence, but they wouldn’t say this easily.”
A 2014 study based on government data suggested that acts of sexual violence by husbands were 40 times greater than those committed by non-intimate partners.
But criminal law in India does not cover marital rape. The sexual violence law, which was amended in 2013 following the infamous Delhi Gang Rape, has an exception clause stating that forced intercourse or sexual acts by a man with his own wife, if she is older than 15, is not rape.
Activists are demanding that this exception, stated in the Indian Penal Code, be scrapped.
Challenging India’s Rape Law
The Delhi High Court is now hearing a cluster of petitions and counter-petitions on the issue.
Chitra Awasth is the founder of charity Rit Foundation, and one of the petitioners asking for the criminalization of marital rape. “The whole idea of filing a public-interest litigation on this issue is to create a social consciousness,” she says. “Marital rape cases in India happen across all classes and societies.”
Campaigners against child marriage and marital rape scored a victory in October, when the Supreme Court ruled that sexual intercourse between a man and his wife does amount to rape if she is younger than 18. But the court refrained from dealing with the issue of marital rape of a woman older than 18.
Earlier, in August, the court had ruled that there is a fundamental right to privacy enshrined in the Indian constitution. Campaigners say this ruling, too, is a boon for the fight to recognize marital rape.
Supreme Court lawyer Chandra Rajan says the privacy ruling makes it clear that sexual integrity, bodily integrity and reproductive choice are fundamental rights and cannot be violated.
“Sexual intercourse with a spouse is a choice, and if a man forces himself on his wife, it has to be treated as a criminal offense,” she says.
The Campaign to Allow Marital Rape
The Indian government has opposed moves to criminalize marital rape, arguing that such a provision would endanger the institution of marriage and could be used to harass husbands.
Several men’s organizations claim there is growing evidence of the misuse of two laws: the dowry law and the Domestic Violence Act of 2005. They say these laws have been used by married women to file lawsuits against their husbands and families to extort money.
But human rights lawyer Colin Gonsalves says allegations of misuse of the law without supportive data cannot be grounds for staying with the current legislation.
“These are sporadic, isolated and anecdotal kinds of stories. On the contrary, studies of domestic violence cases show that women have been brutally battered year after year and now have a remedy which they are using in the court,” he says.
“The simple issue is that for too long men have culturally believed that they have an absolute entitlement to sex and this is now being challenged.”
Access to Justice
Even if the High Court does make a ruling to outlaw marital rape, Parul Chaudhary of the National Forum for Single Women’s Rights says many women will still suffer. She says that in some parts of the country, especially rural northern India, customary law often trumps the rule of law, and women who live in those areas might not report abuse for fear that they could be abandoned without their husbands having to go through the official process of divorcing them.
“A large number of women are separated from or deserted by their husbands and that number is higher than [legally] divorced women in India,” she says.
“Most of these marriages are governed by customary law, and separation happens because village elders and councils tend to respect the rights of men rather than women.”
For many women, reporting rape could lead to a separation that leaves them with nothing.
“A law to criminalize marital rape will be a great victory for women at large,” Chaudhary says. “However, in rural India a lot of women are in a situation where their partner is sexually violent, but it is very difficult in their position to file a police complaint.”
Activists are concerned that few women will dare to take action, even if the High Court decides they can. Many would rather have whatever social recognition marriage may provide than break family and community ties as the result of a customary separation.
“Women’s access to law is so much controlled by society in terms of what is acceptable and what is not that, for [the next few] decades a lot of women may not actually be in a position to use the law,” Choudhary warns.
*Name changed to preserve anonymity.