Marital Rape in India
By Priyali Sur
When a woman in India enters into marriage, she also unwittingly puts herself at risk of becoming a victim of sexual violence with little legal recourse. Currently, India is one of 127 countries in the world that does not explicitly criminalize marital rape. And according to a recent study conducted in eight Indian states by the International Center for Research on Women and the United Nations Population Fund, one-third of men have forced their partners to have sex with them.
Shanti (her name has been changed to protect her identity) was 26 years old when she married her colleague, a man of a different religion, without her parents’ approval. She says that he began to physically and sexually abuse her soon after the wedding. “He would slap me, bite me, and insert all kinds of things into my vagina. I never had an option to say no to sex. Once he hit me and pushed me against a glass table. The glass shattered and pierced my foot. I was taken to the hospital, but the doctor said that the accident had led to permanent sensory nerve damage in my right foot.”
One day, Shanti was brutally raped by her husband who “hit me with a flashlight 16 or 17 times and then inserted it into me.” She went against her family’s wishes and registered a complaint against her husband. “I was scared and alone but I decided to take this man to court,” she says. But even as she took that bold step, she was not aware that the law would fail to defend her.
A Long and Difficult Fight
In the case of marital rape, India still adheres to British common law, which states that the contract of marriage includes a husband’s “right to sex.” According to a clause in Section 375 of the country’s Penal Code, “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
The brutality faced by Shanti has been compared to the infamous December 2012 Delhi gang rape of a female student who was fatally wounded after being attacked by fellow passengers on a bus and violated with metal rods. “[Shanti’s] rape was so brutal that it could easily be compared to the [2012 gang rape]. Shanti was raped, assaulted, and a flashlight was put into her private parts, and she was left to die,” says Kamlesh Kumar Mishra, a lawyer with the Human Rights Law Network (HRLN), an organization that works to advance human rights in India through efforts including providing pro bono legal services.
But while the 2012 gang rape mobilized the nation in the form of widespread street protests and led to the adoption of more stringent sexual assault laws, Shanti has faced a long and difficult fight. “No one comes to help you if your husband has raped you. He’s not even socially ostracized.”
Successive governments in India have avoided addressing the issue of criminalizing marital rape. After the 2012 Delhi gang rape, a 2013 report on sexual violence laws by the Justice Verma Committee recommended removing the clause in Section 375 of the Penal Code that essentially decriminalizes marital rape. However, the government left that clause in place when it amended the Penal Code through the Criminal Law Amendment Act of 2013.
Arguments in the Debate
A number of activists and organizations, including Jyoti Tiwari of the Save Indian Family Foundation, oppose criminalizing marital rape. “Every eight minutes, a married man commits suicide. If there is something like marital rape, then why are married men committing more suicides than married women? Also, if you read the gossip sections in women’s magazines, every other woman is complaining about not getting enough sex from her husband, so then where does this marital rape come from?”
In a recent article in the English-language Indian daily paper The Economic Times, Flavia Agnes, a women’s rights lawyer in Mumbai, found flaws in some of the arguments presented by both sides of the debate. She criticized as sexist an argument put forth by the country’s minister of state for home affairs that marital rape cannot really be classified as rape because marriage is a sacred union. But she also maintains that merely removing the clause in Section 375 of the Penal Code won’t improve women’s lives unless they enjoy strong social and economic support systems that offer a viable alternative to marriage—including those marked by violence. She also points to the existence of other legal remedies, such as protection orders, available to abused women.
The Search for Justice Continues
Shanti is currently pursuing her case in the lower courts with a criminal complaint registered under section 498A of the Penal Code, which stipulates that physical or mental cruelty committed against a woman by her husband or a member of his family is punishable by up to three years in prison. (There is a common perception, including within the judiciary and the media, that 498A is widely misused by disgruntled wives to harass their husbands in dowry-related matters.) She is also seeking justice under the Protection of Women from Domestic Violence Act of 2005. “The complaint was deliberately registered under a very weak section of 498A. However, the crime that was committed was of the magnitude of section 307 of the Penal Code, which is attempted murder. Also, the Domestic Violence Act of 2005 has no penal provisions and can only pass an order of protection,” according to Shanti’s lawyer, Kamlesh Mishra.
In February 2015, HRLN pleaded Shanti’s case before the Supreme Court, petitioning for marital rape to be declared a criminal offence. The court rejected the plea on the grounds that it represented an individual case, and that it was not possible to change the law for just one person. The HRLN has decided to petition the Supreme Court again. “We are on the right path, and we will go ahead and file a Public Interest Litigation with the Supreme Court very soon. I know the court has passed a few misogynistic judgments in the past, but that can’t deter us. This time we will go ahead with some women’s rights organizations and country-wide data,” says Colin Gonsalves, the founder of HRLN and a senior advocate of India’s Supreme Court.
Shanti, who now lives alone, lost her position as a human resources executive with a multinational company. She says that keeping a regular job was becoming increasingly difficult while fighting her case through the court system. She now holds a part-time job that at least helps her pay the bills. At the same time, her husband continues to live in an expensive neighborhood. “How much can one fight? The social pressures can make you lose your strength and resilience, but I don’t want to give up,” Shanti says, knowing that even if laws do change, they may well come too late to help her.