The non-recognition of marital rape as an offence by the Indian legal system, by virtue of being expressly enshrined as an exception to the crime of rape, has been the case ever since the Indian Penal Code came into power in 1862.
However, over the past few days, the issue of marital rape has come under public scrutiny and is being hotly debated over print and social media. The Union government recently submitted before the Delhi High Court that marital "rape cannot be made a criminal offence as it could become a phenomenon that may destabilise the institution of marriage and an easy tool for harassing husbands". The Centre said this in an affidavit filed in response to pleas seeking criminalising marital rape.
One of the most noteworthy reactions to this debate has been that of former Mizoram governer and Supreme Court lawyer, Swaraj Kaushal.
Kaushal, married to a prominent BJP politician and Union external affairs minister Sushma Swaraj, tweeted that “[t]here is nothing like marital rape".
Is that true?
Since marital rape is not a legally recognised offence, it does not find mention in the rape data collected and reported every year by the National Crime Records Bureau (NCRB). However, there are some studies that are useful for shedding light on the incidence of marital rape in India.
Reuters Photo for representational purpose.
A joint study conducted in 2014 by the International Centre for Research on Women and the United Nations Population Fund, covering 9,500 respondents in seven India states found that 17 per cent of surveyed women, which is every sixth woman, reported having experienced some form of sexual violence from their husbands, and 31 per cent of surveyed men, which is nearly one in every three men, admitted to committing an act of sexual violence on their wives.
The difference between husbands’ reported commission of sexual violence and wives’ reported experience of the same is explained by the study as possibly due to the stigma associated with experiencing sexual violence for women, due to which many may not have reported it during the survey.
Additionally, as per the third National Family Health Survey (NFHS), conducted in 2005-2006 under the aegis of the Union government and covering every single state in the country, of the 6,900 married, widowed, divorced and separated women that had reported experiencing sexual violence, 87.5 per cent recognised their current husband as the perpetrator and 7.9 per cent recognised a former husband as the perpetrator.
Essentially, over 95 per cent of these women were victims of marital rape. This is in consonance with the analysis of data from the NFHS and the NCRB done by the Rice Institute, as per which the number of women who experienced sexual violence by husbands was 40 times the number of women who experienced sexual violence by non-intimate perpetrators.
These are shocking figures, as they demonstrate that a significant proportion of married women in our country, anywhere between 17 per cent-31 per cent, are invisible victims of rape, with their rapist husbands shielded by the blind spot afforded to them by our criminal law.
However, the damage posed by this legitimisation of sexual violence against women by their husbands extends beyond the mere number of victims. It is also reflected in the beliefs of Indian men of sexual entitlement over their wives. As per the third NFHS, 19.8 per cent of men in the age group of 15-49, believe that when a wife refuses to have sex with her husband, he has the right to get angry and reprimand her, and 15.5 per cent believe that a wife cannot refuse sex to her husband even if she is tired or not in the mood.
As many as 8.1 per cent of men in the same age group admitted to believing that a husband is justified in beating up his wife if she refuses to have sexual intercourse with him, and 5.7 per cent believed that a husband is justified in using force to have sex (in other words, rape).
These beliefs show a complete disregard to the idea of consent, and women’s agency over their own bodies. Such thinking stems from regressive notions of viewing women as the property of their husbands. No wonder then that such people think that there is nothing like marital rape, because they look at rape from the prism of family honour tied with the woman’s sexuality.
In such a conception, the woman is the property of first her father, and after marriage, her husband; if she is violated by an outsider, it is the father/husband’s reputation that gets besmirched.
However, if the perpetrator is the husband itself, then it is non-problematic since there is no harm to the family’s honour.
We need to move beyond these regressive notions, and see rape for what it is - a crime against an individual, involving the violation of her bodily integrity that is in abrogation of her human rights.
Even the celebrated recent Supreme Court judgment asserting the fundamental right to privacy has affirmed women’s right over their own bodies.
If married women are to exercise this right, the state and its constituent citizens must open their eyes to the fact that marital rape is the horrible reality of the lives of a significantly large number of married women, and delegitimise the menace of marital rape.