Marital Rape (or spousal rape) in India is still not a criminal offence because it may "destabilise the institution of marriage and make men vulnerable to harassment by their wives," according to the Indian government.
The issue has been raised in court again following a petition by activists who are demanding that a legal loophole stated in the Indian Penal Code (IPC) be scrapped and marital rape become its own specific criminal offence.
What are the legalities concerning marital rape in India?
Section 375 of the IPC only considers forced sex in marriage as a crime when the wife is below age 15, following a crackdown on gender-based violence in 2013 after the brutal rape of a young girl in Delhi on a moving bus.
Yet, if the wife is above 18 (originally 15 but amended last October), it is not classed as rape.
While india’s parliament has passed similar recommendations recently including the criminalisation of stalking and making acid attacks a specific offence in itself, it did not agree with the proposal to outlaw marital rape.
What has the Indian government said in regards to this?
The Indian government also suggested that those who are actively seeking to stop the rape of women by their husbands are "blindly" following Western customs.
Yet, neighbouring Pakistan has already arrested a man in the country's Jhelum district recently after he was charged of committing marital rape and sodomy on his wife.
The AAP government defended its response to the petitions seeking the age factor to be eliminated in the clause by saying that marital rape is an offence under Section 498A of the IPC.
This particular section deals with harassment caused to a married woman by her husband and in-laws which causes mental or physical harm to the woman.
They also highlighted examples of cases whereby this law along with the dowry law and the Domestic Violence Act of 2005 have been abused by married women to file lawsuits against their husbands and families in order to extort money and settle personal vendettas.
Yet it should be noted that such cases are extremely rare and heavily outweighed by the victims who they protect and gain justice for.
How many victims of marital rape are there in India?
Whilst there are no completely accurate statistics, a 2014 study undertaken by the Indian government suggested that rape by husbands was 40 times greater than those committed by non-intimate partners.
Amongst married women who were victims of sexual violence, over 83% reported their present husband and 9% report a former husband as the perpetrators.
The most common form of sexual abuse reported by women was that their husband used physical force to have sex when they didn't want to, whilst others reported that their husband forced them to perform sexual acts that they didn't want to using threats.
Many men get away with the rape of their wives as the lack of a legal policy allows them to "prey" on women in the security of their own homes.
Sexual violence also becomes worse if the husband is an alcoholic with 66% of married women experiencing physical or sexual violence if the "husband gets drunk often."
Some victims of marital rape use the Protection of Women from Domestic Violence Act 2005 (PWDVA) for relief.
The PWDVA - which was implemented in 2006 - outlaws marital rape, although it only offers a civil remedy for the offence.
However, since the vast majority of cases are not reported, figures are likely to be much higher as survivors in India often face humiliation at police stations and hospitals with only 10% of married victims of sexual violence seeking help. The lack of trained counsellors to help survivors with their recovery coupled with a lack of access to legal aid adds to their plight.
Unfortunately, it is also likely that these women experience marital rape on an ongoing basis.
Where does this policy come from?
The exception clause dates as far back as the 1800s whereby a girl of eleven was brutally raped by her 35 year old husband and died as a result.
This encouraged the then-colonial government to change the age of consent from ten to twelve years old alongside English common law that women who agree to sex with their husbands on marriage aren't allowed to retract their consent. Ironically enough, this was largely criticised and the argument was amended in 1891. Since then, Section 375 has remained untouched.
The Indian government has also added that a woman is entitled to refuse sex with her husband through Article 21 (protection of life and personal liberty) of the Indian Constitution which ensures that bodily integrity and privacy is secured to all women regardless of whether they are married or not.
What is the main issue regarding marital rape in India?
However, the main problem concerning martial rape in India is that it simply isn't considered to be rape at all.
A video which was being widely shared across social media at the beginning of the year featured several men in India, seemingly across class boundaries, showed the rather disturbing consensus of views which Indian men hold in regards to marital rape.
Indeed even 54% of women themselves said that violence by husbands is justified in a National Health and Family Survey (NHFS).
Separate research though, concluded that 68.4% of women and 63% of men said that a wife is justified in refusing her husband sex for any of these reasons: if she knows he sleeps with other women, has an STI or if she is tired or isn’t in the mood.
The one woman featured sums it up when she says "No means no." There doesn't need to be any sort of justification for it, marital rape is rape and needs to be considered as such so that Indian society doesn't continue to violate women's rights. If the government is serious about building a "New India" by 2022 then marital rape needs to be definitively outlawed, criminalised and enforced.
